MpKftty 

|   LIBRARY  J 

UNIVERSITY  OF 
CALIFORNIA 


/ 


INTERNATIONAL  REALITIES 


INTERNATIONAL 
REALITIES 


BY 
PHILIP  MARSHALL  [BROWN 

PROFESSOR    OF    INTERNATIONAL    LAW    AT    PRINCETON    UNIVERSITY 


Solus  populi  supremo,  lex  esto 
—Twelve  Tables 

Imperil  virtus  securitas 
— Spinoza 


NEW  YORK 

CHARLES  SCRIBNER'S  SONS 
1917 


COPYRIGHT,  1917,  BY 
CHARLES  SCRIBNER'S  SONS 

Published  January,  1917 


TO 


GEORGE  GRAFTON  WILSON,  PH.D.,  LL.D. 

STIMULATING   TEACHER,    COUNSELLOR 
AND    FRIEND 


414 


PREFACE 

Realpolitik  has  been  badly  discredited  be- 
cause of  its  Prussian  associations.  It  has  nat- 
urally become  identified  with  the  Bismarckian 
policy  of  "Blood  and  Iron" — the  policy  which 
sought  German  unity  at  the  expense  of  other 
nations.  In  its  essence,  however,  Realpolitik 
simply  means  that  national  policies  should  be 
based,  not  on  theories  and  abstractions,  but  on 
solid  realities.  The  chief  concern  of  statesmen 
should  be  the  protection  of  the  legitimate  in- 
terests of  the  State.  The  supreme  law  of  the 
State  which  they  are  bound  to  respect  is  "the 
security  of  the  State."  It  does  not  follow  that 
a  policy  of  enlightened  self-interest  means  the 
elimination  of  ethical  standards  and  ideals  from 
international  relations.  It  may  often  mean, 
rather,  their  realization  and  safeguard.  Ideals 
and  generous  instincts  are  to  be  reckoned 
among  the  great  international  realities,  as  well 
as  unworthy  motives  of  antagonism  and  aggres- 
sion. Enlightened  self-interest,  interpreted  as 
the  application  of  the  Golden  Rule  to  the  affairs 
of  nations,  will  ignore  none  of  these  realities. 

vii 


viii  PREFACE 

Understood  in  this  sense,  Realpolitik  stands  in 
favorable  contrast  with  policy  dominated  by 
sentiment  and  emotion.  An  example  of  this 
sentimental  brand  of  policy  is  to  be  found  in 
the  repeal  of  the  Panama  Tolls  Act  in  1914. 
This  was  a  question  which  was  at  least  open  to 
discussion.  It  was  peculiarly  suited  for  Arbi- 
tration. A  wave  of  emotion,  however,  swept 
over  the  country.  The  American  people,  in  a 
spirit  of  almost  morbid  self-abasement,  vol- 
untarily surrendered  a  valuable  privilege  which, 
in  the  opinion  of  many  high-minded  men,  was 
entirely  within  our  rights. 

A  schoolmaster  may  find  it  good  policy  to 
appeal  to  the  manhood  and  sense  of  honor  of 
a  boy  by  reposing  absolute  confidence  in  him. 
A  nation  cannot  afford  to  act  on  any  such  prin- 
ciple. If  it  knows  that  another  nation  is  intent 
on  a  policy  of  aggrandizement  and  aggression, 
it  must  immediately  adopt  precautionary  mea- 
sures of  defense.  There  are  not  lacking  men  of 
prominence  and  influence,  however,  who  would 
strip  the  country  of  its  defenses  in  order  to 
prove  the  purity  of  its  own  motives !  This 
amazing  attitude  reminds  one  of  the  fate  of  the 
Delaware  Indians,  who  were  evilly  inspired  by 
their  worst  enemies,  the  Iroquois,  to  disarm 


PREFACE  ix 

and  become  the  mediator  in  the  quarrels  and 
wars  of  the  Indian  Nations.  The  result,  as 
should  clearly  have  been  foreseen,  was  the 
utter  ruin  of  the  Delaware  Nation. 

It  would  seem  as  if  no  argument  were  needed 
to  demonstrate  that  national  policies  must  be 
devised  and  executed  in  full  recognition  of  in- 
ternational realities.  International  Law  as  a 
genuine  system  of  law  cannot  be  based  merely 
on  philosophical  abstractions.  It  has  lately 
been  subjected  to  "ordeal  by  battle,"  and  has 
been  badly  discredited.  It  has  been  found  to 
contain  much  that  is  spurious.  It  has  failed  to 
apply  itself  strictly  to  its  true  task  of  "regulat- 
ing the  peaceful  relations  of  States."  It  has 
preached  and  moralized,  when  it  should  have 
been  concerned  with  the  definition  and  pro- 
tection of  national  interests. 

This  is  the  explanation  and  the  excuse  for  the 
present  volume.  Since  the  Great  War  began 
I  have  been  conscious,  with  many  others,  of  the 
urgent  necessity  of  a  thorough  reconstruction 
of  the  law  of  nations  in  accordance  with  the  big 
facts  of  international  life.  I  have  set  myself 
the  task  of  endeavoring  to  ascertain  the  funda- 
mental values  in  international  relations. 

The  method  followed  has  been  to  select  cer- 


x  PREFACE 

tain  of  the  large  problems  of  international  re- 
lations and  treat  them  as  separate  topics 
illustrating  and  elucidating  some  of  the  basic 
principles  of  International  Law.  This  has  in- 
volved, naturally,  considerable  repetition;  but 
it  has  served  the  purpose  of  placing  reiterated 
emphasis  on  essential  truths.  Though  there 
has  been  diversity  of  subject-matter,  there  has 
been  unity  of  purpose  and  method. 

I  am  conscious  of  the  inadequacy  of  this  at- 
tempt to  deal  with  questions  of  such  immense 
import.  It  is  evident  that  they  demand  thor- 
ough, intensive  treatment.  It  has  not  been 
possible,  however,  nor  has  it  seemed  to  me  de- 
sirable, to  attempt  here  to  do  much  more  than 
call  attention  to  and  emphasize  the  nature  of 
these  great  international  realities. 

I  realize  that  if  this  volume  should  receive 
any  consideration,  the  points  of  view  advanced 
will  be  subjected  to  considerable  criticism.  I 
shall  feel  that  I  have  accomplished  my  purpose, 
however,  if  discussion  shall  have  been  pro- 
voked. It  is  only  through  earnest,  wide  dis- 
cussion that  we  can  undertake  the  constructive 
work  required  to  make  International  Law  an 
efficient  instrument  for  world-peace. 

I  am  glad  of  an  opportunity  to  express  my 


PREFACE  xi 

obligation  to  the  writings  of  James  Lorimer, 
that  most  stimulating  Scotch  publicist.  He 
may  not  be  entitled  to  the  rank  of  an  authority 
on  International  Law,  but  he  has  hardly  re- 
ceived the  credit  due  as  an  original,  forceful 
thinker.  His  Institutes  of  the  Law  of  Nations 
is  rich  in  just  observations  and  striking  sug- 
gestions. I  have  quoted  him  somewhat  freely, 
not  by  way  of  an  authority,  but  rather  for  his 
vigor  of  expression. 

Certain  of  the  chapters  were  originally  pre- 
pared as  addresses  or  articles  for  publication. 
I  desire  particularly  to  acknowledge  the  kind 
courtesy  of  the  publishers  of  the  North  Amer- 
ican Review  in  permitting  the  inclusion  in  this 
volume  of  the  following  articles:  "The  Dangers 
of  Pacifism,"  July,  1915;  "International  Real- 
ities/' April,  1916;  "Ignominious  Neutrality," 
August,  1916;  and  "Democracy  and  Diplo- 
macy," November,  1916. 

I  desire  to  express  my  grateful  appreciation 
of  the  most  helpful  criticism  and  suggestions  of 
my  colleague  and  friend,  Professor  Edward  S. 
Corwin,  in  the  preparation  of  this  volume. 

PHILIP  MARSHALL  BROWN. 

12  September,  1916, 

WlLLIAMSTOWN,  MASSACHUSETTS. 


CONTENTS 

PAGE 

PREFACE vii 

CHAPTER  I 
INTERNATIONAL  REALITIES i 

International  Law  discredited — War  and  law — Rights  of 
neutrals — Neutrals  and  belligerents — International  Law  and 
Peace — International  Law  unscientific — Law  of  Nature — 
Nature  of  law — Purpose  of  law — International  Law  defined 
— Problem  of  law — Natural  Law  fallacies — Failure  of  In- 
ternational Law — "Right"  of  existence — Equality  of  States 
— Fundamental  values — The  Great  War — Rights  of  nation- 
alities— The  great  problem — Enforcement  of  law — Value  of 
International  Law — International  Law  and  Diplomacy — 
Arbitration — International  Law  and  Municipal  Law — True 
sanction  of  International  Law — The  task. 

CHAPTER  II 
NATIONALISM -.     .     .     23 

Origin  and  nature  of  the  State:  Object  of  the  State — 
Community  of  interests — Factors  constituting  community 
of  interests:  language;  religion;  political  sympathies;  cus- 
toms, traditions;  economic  factor;  geographical  factor;  ex- 
ternal pressure — Nationalism  and  Kultur — Ethical  justifica- 
tion of  the  State — The  enemies  of  Nationalism:  Statesmen; 
idealists — Nationalism  and  Internationalism — Nationalism, 
basis  of  International  Law — Essentials  of  the  State:  popu- 
lation; territory;  variety  of  resources;  economic  defense; 
rivers,  ports;  "Hinterland"  doctrine;  adjacent  islands;  con- 
flict of  interests,  "free  ports";  boundaries — Political  essen- 
tials: "reciprocating  will";  anarchism;  despotism;  need  of 
guarantees  by  people;  significance  of  constitutions:  defects 
of  American;  defects  of  German  Constitution;  democratic 
government — "Moral  personality"  of  the  State:  German 
theory  of  the  State;  Anglo-Saxon  theory;  merits  of  German 
theory;  the  individual  and  the  State — Forces  controlling 
destinies  of  nations — Ethical  factor— The  "conscience"  of 
the  State:  Sittlichkeit;  no  common  judge  of  nations — State 
a  "moral  person"  in  a  legal  sense — Summary. 
xiii 


PAGE 


xiv  CONTENTS 

CHAPTER  III 
THE  RIGHTS  OF  STATES 56 

"Rights"  and  interests — "Declaration  of  Rights";  legal 
rights— International  Law  not  based  on  abstractions — 
Necessity  of  adjusting  law  to  reality — The  "right"  to  ex- 
ist: status  quo  not  sacred;  nationalism;  legal  right  to  exist — 
International  Law  universal — "Right"  of  Independence — 
Nations  not  truly  independent;  independence  and  recogni- 
tion; status  of  Canada  and  Australia;  "right"  of  indepen- 
dence an  assumption;  claim  to  freedom — "Right"  of  sov- 
ereignty; origin  of  term;  sovereignty  and  independence; 
ideal  of  sovereignty  absurd  in  application;  theory  of  sover- 
eignty of  no  real  value — "Right"  of  equality:  human  ine- 
qualities; equality  of  nations;  equality  a  logical  deduction; 
are  States  truly  equal? — "Right"  of  equality  and  "law  of 
nature";  inequalities  of  nations;  relative  influence  of  nations; 
unequal  representation  on  international  courts;  equality  and 
international  organization;  theory  of  equality  unsound — 
Summary:  rights  spring  from  recognition  of  interests;  Inter- 
national Law  based  on  realities. 

CHAPTER  IV 
THE  LIMITATIONS  OF  ARBITRATION  ....     75 

Claims  of  extreme  Pacifists;  ignorance  of  Arbitration — 
Causes  of  war:  Spanish-American  War;  South  African  War; 
Russo-Japanese  War;  Italo-Turkish  War;  Balkan  Wars- 
Treaty  of  Bucharest;  the  Great  War;  Arbitration  not  ap- 
plicable; divergence  of  views — Scientific  treatment  of  causes 
of  war — Recent  Arbitrations:  Pious  Funds  Arbitration; 
Venezuelan  Preferential  Claims;  Japanese  house  tax  et  al; 
Casablanca  Arbitration;  Savarkar  Case;  North  Atlantic 
Fisheries — Dogger  Bank  incident — Recent  diplomatic  ad- 
justments: nature  of  adjustments — Conclusions:  I.  Causes 
of  war  not  trivial;  II.  war  a  last  resort;  III.  Arbitration 
for  unimportant  matters;  IV.  Arbitration  not  justice;  V. 
Arbitration  a  triumph  for  diplomacy;  VI.  Arbitration  the 
helpmeet  of  diplomacy. 

CHAPTER  V 
INTERNATIONAL  ADMINISTRATION      ....     99 

World  organization:  Lorimer's  scheme;  Kant's  scheme — 
Nations  and  individuals;  municipal  communities;  interna- 
tional community;  International  Law  not  like  municipal 
law — Interests  of  nations:  international  congresses;  nocoer- 


CONTENTS  xv 

PAGE 

cion;  international  executive;  administration  of  International 
Law;  nature  of;  definition  of  rights  required — International 
administration:  Danube  Commission;  Suez  Canal;  Tangiers; 
Spitzbergen;  Constantinople;  Sanitary  Board  and  Dette 
Publique;  exterritorial  countries;  international  unions,  their 
utility;  international  clearing-house;  Pan-American  union 
— Summary — Conclusion. 

CHAPTER  VI 
IGNOMINIOUS  NEUTRALITY 120 

Munitions  embargo:  United  States  vs.  Great  Britain; 
Germany  vs.  Great  Britain;  Germany  vs.  United  States; 
American  rights — Nature  of  neutrality:  ships  and  arms; 
definition  of  munitions;  enlistments;  loans;  rights  of  bellig- 
erents; Neutrality  abnormal;  belligerent  vs.  neutral  interests; 
neutral  rights  uncertain;  War  of  1812;  modern  parallel; 
obligations  of  neutrals;  difficulties  of  neutrality — True  in- 
terests of  neutrals:  duty  of  intervention;  Westlake's  views; 
Lorimer's  views;  neutral  cannot  be  indifferent — Summary. 

CHAPTER  VII 
THE  DANGERS  OF  PACIFISM 140 

Pacifist  propaganda:  meaning  of  Militarism;  meaning  of 
Pacifism;  demands  on  International  Law;  ignorance  of  Arbi- 
tration; Diplomacy  and  Arbitration;  Arbitration  propa- 
ganda and  Europe;  European  problems;  America  not  medi- 
ator of  Europe — Real  task:  international  legislation;  prob- 
lems of  Western  Hemisphere — Dangers  of  Pacifism:  fosters 
cowardice  and  materialism;  ignores  spiritual  values;  Pacifism 
vs.  Nationalism;  Nationalism  misunderstood;  need  of  Na- 
tionalism; Pacifism  a  cause  of  war;  Pacifism  vs.  Prepared- 
ness— Conclusion. 

CHAPTER  VIII 
PAN-AMERICANISM 158 

Misdirected  idealism — The  American  problem:  failure  of 
United  States  Pan-American  policy;  need  of  law  between 
Republics;  the  Monroe  Doctrine  interpreted  by  Mr.  Root; 
Monroe  Doctrine  a  sanction  of  International  Law — The 
Monroe  Doctrine  a  Pan-American  doctrine — The  creation 
of  law:  International  Private  Law;  "conflicts  of  laws" 
within  United  States;  Commission  of  Jurists;  High  Com- 
mission on  Uniformity  of  Laws;  the  Pan-American  Union; 
its  possibilities — Duty  of  United  States  for  peace. 


xvi  CONTENTS 


CHAPTER  IX 

PAGE 

DEMOCRACY  AND  DIPLOMACY 174 

Causes  of  the  Great  War — The  "democratization  of 
-foreign  policies":  popular  confusion  of  Diplomacy  with 
policies;  statesmen  determine  policies — Functions  of  Diplo- 
macy: success  of  American  Diplomats;  is  Democracy  com- 
petent to  control  foreign  affairs  ?  De  Tocqueville's  views; 
need  of  secrecy  in  Diplomacy;  value  of  publicity;  compre- 
hensive knowledge  required;  attitude  of  American  Democ- 
racy; Washington's  policy  toward  France;  Lincoln  and 
The  Trent;  President  Wilson  and  German  conspiracies — 
Democracy  and  Diplomacy:  issue  between  "Direct  Govern- 
ment" and  "Representative  Government";  Democracy  un- 
able to  determine  policies;  confidence  of  Democracy  in  its 
representatives — The  Diplomatic  Service:  no  parallel  with 
Army  and  Navy — Objections  to  permanent  service:  "dead 
timber";  representative  diplomats;  freedom  of  President 
in  his  choice;  permanent  service  undesirable;  rich  men  not 
needed  as  diplomats;  secretaries  of  Embassies  and  Lega- 
tions; merit  should  be  recognized;  "Spoils  System" — Sum- 
mary. 

CHAPTER  X 
THE  SUBSTITUTION  OF  LAW  FOR  WAR       .     .  201 

The  horror  of  war:  duelling  and  Arbitration;  self-redress; 
what  is  peace  ?  the  horrors  of  peace — The  European  catas- 
trophe: capable  of  explanation;  Balance  of  Power;  futility 
of  Balance  of  Power;  rights  of  nationalities — Sound  princi- 
ples: I.  Community  of  interests:  plebiscites;  conflicts  of 
interests — II.  Principle  of  Autonomy — III.  Freedom  of 
Trade:  economic  interdependence;  "commercial  access"; 
wide  application  of  principle;  three  principles  complemen- 
tary— Terms  of  peace — Rights  and  obligations:  .divergent 
views  of  nations;  need  of  mutual  understanding — Status  of 
International  Law:  rights  of  foreign  creditors;  international 
torts;  Conflict  of  Laws;  International  Law  and  war — 
Creation  of  International  Law:  conferences;  international 
progress — The  task. 


INDEX 227 


INTERNATIONAL   REALITIES 


CHAPTER  I 

INTERNATIONAL  REALITIES 
International  Law  has  often  been  attacked,  international 

Law 
discredited 


It  has  been  scoffed  at  as  being  in  no  sense  law 


at  all.  Its  prestige  of  late,  it  must  be  admitted, 
has  suffered  considerably.  It  has  been  severely 
discredited — justly  in  some  respects,  most  un- 
discriminatingly  in  others.  Much  of  the  criti- 
cism reveals  a  superficial  appreciation  of  the 
facts.  The  most  lamentable  aspect  of  the  sit- 
uation, one  that  of  necessity  is  not  readily  per- 
ceived, is  that  International  Law  has  probably 
suffered  more  at  the  hands  of  its  friends  than 
of  its  enemies. 

The  purpose  of  this  chapter  is,  therefore,  to 
consider  frankly  the  various  ways  in  which 
International  Law  has  been  discredited,  whether 
justly  or  unjustly,  and  to  endeaver  to  deal 
candidly  with  the  brute  facts. 

First  of  all,  it  must  be  recognized  that  Inter- 
national Law  has  been  seriously  discredited  in 
the  eyes  of  many  by  the  manner  in  which  the 
Great  War  has  been  waged.  It  is  held  that 
the  flagrant  violations  of  accepted  rules  of  law 


2  INTERNATIONAL  REALITIES 

governing  the  conduct  of  war,  by  certain  of  the 
belligerents,  show  that  International  Law  is 
entitled  to  little  or  no  respect;  it  is  impotent, 
a  feeble  reed,  a  "mere  scrap  of  paper." 

According  to  such  critics,  a  law  which  cannot 
respond  to  the  strain  when  it  is  most  needed  is 
a  mockery,  an  object  of  derision.  Such  criti- 
cism, however,  in  spite  of  its  apparent  justifica- 
tion, reveals  a  distorted  sense  of  proportion,  a 
false  standard  of  values.  It  proceeds  from  an 
erroneous  impression,  which — it  must  be  frankly 
admitted — has  been  fostered  unconsciously  by 
many  publicists,  to  the  effect  that  International 
Law  was  mainly,  if  not  primarily,  concerned 
with  the  regulation  of  war:  that  in  fact  it  had 
little  significance  except  in  time  of  war. 

Curiously  enough,  the  two  Hague  Peace 
Conferences  of  1899  and  1907,  which  were  con- 
vened for  the  purpose  of  promoting  the  cause 
of  peace,  have  done  much  to  confirm  this  im- 
pression. It  is  true  that  heroic  attempts  were 
made  at  these  Conferences  to  provide  adequate 
facilities  through  mediation,  "Commissions  of 
Inquiry,"  and  particularly  by  Arbitration,  to 
settle  international  disputes  without  recourse  to 
war.  But  it  is  also  true  that  these  Conferences 
concentrated  their  labors  on  the  making  of 


INTERNATIONAL  REALITIES  3 

laws  to  regulate  the  conduct  of  war — that 
abnormal  state  of  affairs  which  is  in  fact  the 
very  negation  of  law. 

This  is  not  to  ignore  one  other  solitary  Hague 
Convention  concerning  the  Recovery  of  Con- 
tract Debts.  Designed  to  eliminate  one  of  the 
many  causes  of  war,  it  really  consecrated  the 
most  vicious  principle  that  a  nation  is  justified 
under  certain  questionable  circumstances  in  re- 
sorting to  force  to  secure  payment  for  debts 
frequently  of  doubtful  origin. 

The  idea  that  International  Law  should  reg-  War  and  law 
ulate  war  is  essentially  paradoxical  and  un- 
sound. It  is  to  attempt  to  revive  the  Age  of 
Chivalry;  to  make  wars  courteous  and  decent; 
an  opportunity  for  the  display  of  knightly  vir- 
tues. To  plead  for  a  humane  war  sounds  al- 
most preposterous. 

As  long  as  wars  may  seem  necessary  and  in- 
evitable, we  must,  of  course,  insist  that  they  be 
waged  with  due  respect  to  the  rights  of  human- 
ity. It  still  remains  true,  however,  that  whether 
or  no  the  belligerents  will  observe  among  them- 
selves the  rules  of  war,  the  dictates  of  humanity, 
there  is  in  reality  no  legal  method  on  the 
battle-field  to  compel  them  to  do  otherwise 
than  as  their  own  conscience  and  the  all-con- 


4  INTERNATIONAL  REALITIES 

trolling  exigencies  of  military  necessity  may 
command. 

Rights  of  But  you  will  say  that  the  law  of  nations 

should  at  least  uphold  the  rights  and  obligations 
of  neutrals;  that  it  cannot  plead  irresponsibility 
in  this  respect.  This  is  undoubtedly  true  in 
large  measure;  but  even  here  we  must  be  sure 
of  the  exact  conditions  to  which  International 
Law  should  apply.  If  we  assume,  as  some 
superficial  thinkers  do,  that  a  great  war  is  very 
much  like  a  street  brawl  which  ought  not  to 
involve  any  one  other  than  the  hot-headed 
combatants,  then  neutral  nations  are  correct 
in  insisting  indignantly  that  the  right  to  con- 
tinue their  peaceful  pursuits  unmolested  should 
be  scrupulously  respected  by  the  nations  at  war. 

If,  however,  we  are  prepared  to  recognize  the 
actual  facts  of  international  existence;  if  we 
realize  that  the  nations  of  the  earth  have  be- 
come so  intimately  interdependent  that  any 
great  calamity  affecting  one  or  several  of  them 
must  necessarily  affect  the  rest,  both  directly 
and  indirectly,  then  neutral  nations  cannot 
rightly  claim  their  interests  should  not  suffer 
material  damage. 

As  a  matter  of  fact,  neutral  nations  have  al- 
ways recognized  that  war  must  directly  affect 


INTERNATIONAL  REALITIES  5 

their  interests  as  well  as  the  interests  of  the 
belligerents.  This  is  evidenced  by  the  willing- 
ness of  neutrals  to  permit  the  visit,  search,  and 
even  capture  of  their  private  ships  on  the  high 
seas;  to  allow  the  capture  of  goods  of  a  con- 
traband character  having  a  hostile  destination; 
to  respect  formally  declared,  and  effectively 
maintained,  blockades;  and  to  perform  some 
of  the  irksome  obligations  imposed  on  neutrals 
to  avoid  participation  in  the  contest. 

But  we  must  go  even  further.  Not  only  Neutrals  and 
must  neutral  nations  suffer  inevitably  through  beUi£erents 
grievous  injury  to  their  interests  at  the  hands 
of  belligerents;  they  must  also  recognize  that 
the  fact  of  the  intimate  interdependence  of 
nations  cannot  leave  neutrals  entirely  indiffer- 
ent concerning  the  issues  and  the  results  of  a 
great  war.  "There  comes  a  moment,"  as  some 
statesman  has  wisely  said,  "when  a  neutral  na- 
tion is  compelled  to  recognize  that  its  best  in- 
terests demand  the  triumph  of  one  of  the  two 
sides  at  war."  When  this  truth  is  borne  in  on 
the  consciousness  of  a  neutral  nation,  it  must 
without  sentiment  or  passion  adjust  its  attitude 
accordingly.  Either  it  must  be  willing  to  toler- 
ate considerable  interference  with  its  technical 
rights  by  the  belligerents  whose  side  it  desires 


6  INTERNATIONAL  REALITIES 

to  triumph,  or  it  must  openly  ally  itself  in 
certain  eventualities  with  that  side,  and  fight 
as  well  as  pray  for  its  success.  Otherwise  a 
neutral  nation  may  easily  find  itself  the  victim 
of  an  extraordinary  situation  where,  in  the  as- 
sertion of  its  alleged  rights,  it  is  impelled  to 
antagonize  and  harm  the  very  belligerents 
whose  cause  it  at  heart  most  favors. 

international  The  most  serious  indictment  against  Inter- 
peace""*  national  Law  at  the  present  time  consists  not  in 
the  manner  in  which  this  war  is  being  waged, 
but  in  the  brutal  fact  of  war  itself.  The  true 
function  of  International  Law  is  not  to  govern 
war;  it  is  to  avert  war.  This  is  the  real  vital 
problem  which  should  claim  the  serious  atten- 
tion of  all  thoughtful  men;  how  can  the  law  of 
nations  best  fulfil  its  functions  in  time  of  peace  ? 
Why  is  it  that  International  Law,  since 
Grotiiis  in  1625  tried  to  bring  nations  to  their 
senses,  has  not  yet  found  the  way  of  avoiding 
war  ?  Can  it  plead  the  impossibility  of  chang- 
ing the  evil  hearts,  the  predatory  instincts,  the 
blind  passions  of  men  ?  Or  must  it  humbly 
admit  that  it  has  been  in  error;  that  its  al- 
leged principles,  its  bold  postulates,  have  been 
unsound,  fallacious,  and  unrelated  to  the  facts 
of  international  existence  ? 


INTERNATIONAL  REALITIES  7 

The  charge  against  the  defective  nature  of  international 

Law 
unscientific 


man  is,  of  course,  in  large  measure  well  founded; 


but  nothing  can  excuse  International  Law  if  it 
should  be  proved  that  its  methods  and  its 
theories  have  been  faulty  and  unscientific. 
This,  I  fear,  ought  candidly  to  be  admitted. 
It  would  seem  true  that  the  law  of  nations, 
receiving  its  inception  at  the  hands  of  Grotius, 
as  it  did,  as  a  moral  protest  against  the  existing 
state  of  international  anarchy,  has  ever  since 
sought  to  play  the  role  of  the  preacher,  the 
teacher,  the  reformer,  the  moral  idealist, 
rather  than  to  serve  as  the  jurist-consult,  the 
lawgiver,  the  practical  statesman. 

The  special  evidence  of  this  regrettable  fact  Law  of 
is  to  be  found  in  the  attempt  to  identify  In- 
ternational Law  with  the  Law  of  Nature,  that 
mysterious,  sovereign  legislation,  that  supreme 
authority  to  which  men  are  supposed  to  sub- 
mit all  their  human  affairs.  The  pity  of  it  all 
is  that  the  followers  of  Grotius  would  seem,  in 
the  main,  to  have  misunderstood  his  purpose  in 
invoking  the  Law  of  Nature.  Grotius  himself 
was  most  scientific  in  method,  and  a  careful 
study  of  his  statements  does  not  indicate  that 
he  confused  International  Law  with  the  Law 
of  Nature.  On  the  contrary,  wherever  he  could 


8  INTERNATIONAL  REALITIES 

ascertain  an  undoubted  principle  of  law  through 
an  exhaustive  examination  of  international 
usages,  customs,  and  precedents  of  all  kinds, 
there  he  was  contented  to  rest  his  case.  But 
where,  as  for  example,  in  the  matter  of  miti- 
gating the  horrors  of  war,  he  found  little  or  no 
support  for  his  humane  contentions  in  usage, 
custom,  or  precedent,  he  then  appealed  to  the 
Law  of  Nature  in  the  obvious  hope  that,  in  the 
absence  of  a  supreme  Imperial  or  Church  au- 
thority, mankind  would  acknowledge  the  dic- 
tates of  reason  and  humanity  expressed  in 
terms  of  Natural  Law.  The  most  that  Grotius 
would  seem  to  have  implied  by  such  an  appeal 
was  a  challenge  to  the  reason  of  man,  to  his 
sense  of  equity,  to  his  sentiments  of  justice. 
And  this,  apparently,  is  about  all  that  any  of 
us  really  mean  when,  outside  of  the  field  of 
religion,  we  venture  to  appeal  to  "natural 
rights."  We  merely  ask  each  other  to  give 
the  assent  of  our  reason  that  certain  proposi- 
tions are  self-evident. 

There  are,  of  course,  many  facts  of  this  char- 
acter which  are  daily  accepted  without  question 
or  serious  discussion.  We  do  not,  however, 
appeal  to  a  Law  of  Nature  for  their  recognition. 
We  know  that  human  affairs  must  necessarily 


INTERNATIONAL  REALITIES  9 

be  carried  on  by  discussion  and  argument,  by 
an  ultimate  appeal  to  reason.  If  the  minds  of 
men  are  not  convinced  of  the  truth  of  an  as- 
sertion, an  alleged  principle  or  right,  it  is  use- 
less to  invoke  the  authority  of  any  law,  whether 
it  be  termed  natural  or  divine. 

An  International  Law  publicist  of  note,  in 
defending  the  Law  of  Nature,  protested  that 
"while  you  may  drive  it  out  of  the  front  door, 
it  will  manage  to  gain  fresh  entrance  through 
the  back  door  or  the  windows."  It  is  precisely 
against  this  kind  of  unguarded,  careless,  un- 
scholarly  mode  of  thought  that  we  all  should 
be  vigilant.  If  by  reason  of  conventional 
phraseology  we  are  compelled  to  speak  of  Nat- 
ural Law  and  Natural  Rights,  let  us  be  clear  in 
our  own  minds  that  we  simply  mean  an  ap- 
peal to  the  highest  sense  of  justice  of  which 
reason  is  capable.  And  even  then,  let  us  be  on 
our  guard  lest  we  fall  back  on  a  Law  of  Nature 
in  order  to  support  propositions  which  we  may 
not  have  been  able  to  justify  by  reasoned  ar- 
gument. 

It  would  seem  logically  necessary,  in  avoiding  Nature  of  law 
recourse  to  an  assumed  Law  of  Nature,  that  we 
should  endeavor  to  define  more  clearly  what 


io  INTERNATIONAL  REALITIES 

we  understand  to  be  the  nature  of  law.  The 
failure  to  define  carefully  the  purpose  and 
function  of  law  may  be  responsible  for  some  of 
the  confusion  of  thought  that  seems  to  exist  in 
respect  to  the  law  of  nations. 

In  the  physical  world  we  note  the  existence 
of  certain  so-called  laws  in  accordance  with 
which  definite  phenomena  take  place:  for 
example,  the  fall  of  an  apple  in  obedience  to 
the  law  of  gravitation.  It  is  evident,  however, 
that  human  laws  are  of  a  different  character. 
Men  are  governed  in  other  ways  than  as  inert 
atoms  controlled  by  irresistible  laws;  they 
themselves  determine  the  laws  which  shall 
control  their  mutual  relations.  If  these  re- 
lations are  not  adjusted  in  an  orderly  fashion 
by  common  agreement,  there  is  no  possibility 
of  an  efficient  social  or  political  organization. 
It  is  of  mutual  concern  that  the  interests  of 
each  and  all  should  be  duly  recognized  and  re- 
spected. 

Purpose  of  The  purpose  of  law,  expressed  in  its  simplest 

terms,  thus  becomes  evident  as  the  protection 
of  interests,  or,  as  Gareis  well  states : 

Law  is  the  means  of  the  peaceable  regulation  of  the 
external  relations  of  persons  and  their  social  communities 
among  themselves. 


INTERNATIONAL  REALITIES  n 

...  It  does  not  concern  itself  with  internal  activities 
which  belong  to  the  domain  of  morals  and  religion.  .  .  . 
The  nature  of  a  legal  right  is  such  that  it  is  always  a 
definite  interest,  actually  entertained  by  a  person  or  a 
community.  For  the  protection  and  guarantee  of  these 
interests,  legal  order  expresses  its  commands  and  prohibi- 
tions, and  through  this  guaranty  interests  become  legal 
interests  (legal  rights).1 

If  we  accept  this  definition  of  law  as  being  international 
scientifically  exact  and  affording  a  satisfactory 
basis  for  discussion,  International  Law  may 
therefore  properly  be  defined  in  the  words  of 
Gareis  as:  "The  totality  of  legal  rules  by  which 
the  public  interests  of  States — among  themselves 
— the  international  relations  of  States — are  legally 
governed;  and  accordingly  by  which  the  com- 
mon interests  of  States  are  legally  protected."2 

It  is  evident,  in  the  light  of  this  definition  of  Problem  of 
law  in  general  and  of  International  Law  in  par- 
ticular, that  the  practical  problem  is  first  to 
ascertain  with  precision  the  exact  interests  to 
be  protected,  and  then  to  endeavor  to  discover 
just  what  law  has  been  mutually  accepted 
among  nations  to  protect  these  interests. 

It  is  here  that  theories  of  Natural  Law  have  Natural  Law 
wrought   their   greatest   havoc.      Most   of  the  fallacies 

1  Science  of  Law,  p.  29.  2  Ibid.,  p.  287. 


12  INTERNATIONAL  REALITIES 

writers  on  International  Law,  following  in  each 
other's  footsteps,  venture  to  lay  down,  with 
varying  degrees  of  boldness  or  timidity,  certain 
fundamental  postulates,  to  proclaim  certain 
"absolute,"  "inherent*'  rights  of  States.  They 
assert  as  the  keystone  to  the  structure  of  In- 
ternational Law,  the  right  of  a  State  to  exist. 
They  then  deduce  the  sovereignty  of  the  State 
as  a  necessary  attribute,  though  it  is  never  very 
clear  just  what  "sovereignty"  really  denotes. 
They  assert  the  right  of  a  State  to  indepen- 
dence, and,  necessarily,  to  complete  equality. 

We  have  had  only  recently  a  rhetorical  re- 
affirmation  of  these  fundamental  postulates  in 
the  form  of  a  Declaration  of  Rights  by  the 
American  Institute  of  International  Law,  com- 
posed of  representatives  of  International  Law 
societies  in  all  of  the  States  belonging  to  the 
Pan-American  Union.  Such  declarations,  which 
familiarly  recall  Rousseau  and  revolutionist 
literature,  may  pretend  to  define  the  interests 
of  States  which  it  is  the  object  of  International 
Law  to  protect.  They  do  not  indicate,  however, 
from  whence  flow  these  "absolute,"  inherent" 
rights  except — by  a  treacherous  analogy  to  in- 
dividual rights — from  that  mysterious  author- 
ity, the  Law  of  Nature. 


INTERNATIONAL  REALITIES  13 

As  a  matter  of  fact,  if  we  test  these  theories 
in  the  laboratory  of  international  realities,  we 
discover  that  we  do  not  always  get  a  satisfac- 
tory reaction.  We  find  that  it  is  most  doubt- 
ful in  certain  instances,  such  as  Morocco  and 
Persia,  for  example,  whether  a  nation  has  a 
right  to  exist.  We  find  that  some  nations  are 
obviously  not  truly  sovereign,  completely  in- 
dependent, or  absolutely  equal  by  the  nature  of 
things.  And  yet,  in  the  practical  relations  of 
States,  it  is  evident  that  such  States,  whether 
Panama,  Cuba,  Belgium,  or  Switzerland,  are 
to  be  considered  as  international  entities  with 
definite  interests  which  must  be  properly  pro- 
tected. 

The  concepts  of  sovereignty,  independence,  Failure  of 
and  equality  may  serve  possibly  as  ideals,  as  a  ^rnational 
goal  of  ambition;  but  from  the  scientific  point 
of  view  they  serve  no  practical  purpose.  They 
tend,  on  the  contrary,  to  confuse,  to  hinder,  the 
work  of  the  construction  of  law.  This  is  the 
painful  confession  that  candor  compels  us  to 
make:  International  Law  has  not  yet  pro- 
claimed the  Magna  Carta  which  shall  effec- 
tively regulate  and  protect  the  relations  and 
rights  of  nations. 


14  INTERNATIONAL  REALITIES 

Right  of  Nowhere  is  this  unpleasant  truth  more  evi- 

dent than  in  respect  to  the  question  of  the  right 
of  a  State  to  exist.  If  we  dispassionately  re- 
view European  history  since  the  Congress  of 
Vienna;  if  we  consider  the  artificial,  arbitrary 
manner  in  which  boundaries  have  been  created, 
peoples  transferred  like  cattle  from  one  State 
to  another;  if  we  visualize  the  hopeless  state 
of  anarchy  that  formerly  existed  in  Morocco 
and  now  exists  in  Persia;  if  we  contemplate 
all  these  facts,  surely  we  can  reach  no  other 
conclusion  than  that  there  is  no  absolute  right 
of  a  State  to  exist.  Boundaries  that  have  been 
made  arbitrarily,  may  as  arbitrarily  be  remade. 
States  now  existing  may  be  broken  up  or  re- 
created along  different  lines.  Curiously  enough, 
portions  of  Empire  like  Canada,  for  example, 
may  assume  a  quasi-international  status  with- 
out ceasing  to  be  part  of  the  Empire  itself. 

The  significance  of  this  fact  concerning  the 
right  of  a  State  to  exist  should  be  evident  in 
relation  to  the  development  of  a  real  science  of 
International  Law.  If  we  have  not  yet  de- 
fined with  any  accuracy  the  very  factors,  the 
basic  elements,  with  which  International  Law 
must  deal,  it  is  preposterous  to  expect  that  it 
should  be  called  on  to  protect  interests  which 


INTERNATIONAL  REALITIES  15 

are  necessarily  artificial,  ephemeral,  and  of  a 
conflicting  character. 

If  nations  are  not  equal  in  moral,  intellec-  Equality  of 
tual,  or  even  material  influence;    if  they  have     tates 
not  an  equal  concern  in  the  adjustment  of  in- 
ternational   interests;     if  they    have    not    an 
equal  voice  in  the  creation,  the  interpretation, 
and  the  enforcement  of  law;  if,  in  fact,  the  claim 
to    equality    stands    squarely    in    the   way   of 
world  organization  itself;  then  it  is  folly  to  in- 
sist on  the  concept  of  equality  as  a  basic  prin- 
ciple of  the  law  of  nations. 

We  must  therefore  be  sure  of  the  exact  na-  Fundamental 
ture  of  our  materials  in  the  science  of  Interna-  values 
tional  Law  before  we  try  to  determine  the  legal 
rights  and  obligations  of  States.  To  do  other- 
wise is  to  construct  a  bridge  of  wood  on  the 
assumption  that  we  are  using  iron:  to  erect  a 
building  of  chalk  under  the  supposition  that  it 
is  stone.  A  law  of  nations  of  such  a  character 
is  of  no  value  as  a  Magna  Carta  of  international 
rights;  it  is  essentially  unscientific,  a  modus 
vivendi,  a  mere  temporary  makeshift  unworthy 
of  respect. 

The  practical  application  of  all  this  is  obvi-  The  Great 
ously  to  be  found  in  the  Great  European  War.   War 


i6 


INTERNATIONAL  REALITIES 


Rights  of 
nationalities 


The  great 
problem 


However  we  may  apportion  the  immediate  re- 
sponsibility for  this  catastrophe,  we  are  slowly 
beginning  to  realize  that  its  origins  and  its 
ultimate  effects  directly  and  vitally  concern 
this  question  of  the  right  of  a  State  to  exist. 

This,  then,  is  the  fundamental  reality,  the 
basic  element  with  which  International  Law 
must  deal:  if  we  cannot  concede  the  absolute 
right  of  a  State  to  exist,  we  must  recognize  the 
rights  of  nationalities  to  exist.  We  must  rec- 
ognize the  vital  fact  that  men  are  bound  to 
group  together  into  nationalities  to  achieve 
their  common  ends.  Until  we  freely  concede 
this  fact;  until  we  try  honestly  and  dispassion- 
ately to  determine  the  relative  rights  of  nation- 
alities, potential  as  well  as  already  existing;  to 
draw  boundaries  with  due  regard  for  their  con^ 
flicting  interests  and  sensibilities,  we  have  not 
created  those  reasonably  permanent  nations 
whose  interests  it  is  the  function  of  Interna- 
tional Law  to  protect. 

This,  then,  should  be  the  all-absorbing  pre- 
occupation of  European  statesmen  and  the 
citizens  of  the  whole  world  as  well:  to  endeavor 
to  prepare  the  way  for  a  peace  which  shall  re- 
adjust the  interests  of  all  nations  on  a  just  and 


INTERNATIONAL  REALITIES  17 

firm  basis.  If  revenge,  if  the  desire  for  repara- 
tion, for  power  and  material  aggrandizement, 
are  to  be  the  controlling  motives  in  the  peace 
conference  which  must  end  this  and  any  war; 
if  a  just,  scientific  appreciation  of  the  factors 
which  compose  the  fabric  of  international  polity 
does  not  dominate  its  councils,  we  may  well  de- 
spair of  the  future  of  the  science  of  Interna- 
tional Law  as  well  as  of  the  peace  of  the  world. 

But,  you  will  very  properly  observe,  "granted  Enforcement 
that  nations  may  yet  learn  to  recognize  and  re- 
spect their  mutual  interests,  how  are  these 
interests  to  be  protected  if  there  is  no  effec- 
tive sanction  for  International  Law  ?"  "What 
kind  of  law  is  it  that  depends  only  on  public 
opinion  for  enforcement,  that  still  leaves  to 
each  nation  the  right  of  self-redress  ?"  Such  a 
person  will  be  inclined  to  join  the  ranks  of 
those  who  believe  that  a  superior  sanction  is 
the  chief  requisite  in  law,  and  indignantly  to 
protest  that  International  Law  is  in  no  way  en- 
titled to  be  characterized  as  law.  He  will  pre- 
fer to  term  it  international  morality  of  a  feeble 
sort,  particularly  if  he  has  received  his  im- 
pressions from  the  school  of  Natural  Law  and 
certain  professional  pacifists  who  are  accepted 
as  exponents  of  International  Law. 


i8  INTERNATIONAL  REALITIES 

Now  it  cannot  be  denied  that  the  law  of 
nations  labors  under  this  disadvantage:  its 
edicts  are  occasionally  treated  with  contempt; 
an  international  legislature,  judiciary,  and  ex- 
ecutive are  apparently  required  to  give  it  full 
value  and  power.  Not  only  is  this  true,  it  is 
also  evident  that  nations  still  lack  that  com- 
mon conception  of  rights  and  obligations  which 
is  essential  to  enable  men  to  unite  under  a  com- 
mon executive,  legislature,  and  judiciary.  Japan 
and  Italy,  Russia  and  the  United  States,  Ger- 
many and  Belgium,  Haiti  and  Great  Britain, 
all  hold  varying  views  of  the  object  and  powers 
of  the  State,  of  the  rights  and  duties  of  States, 
of  the  great  basic  principles  of  justice.  Until 
they  can  begin  to  think  alike  in  matters  of  fun- 
damental significance,  it  is  idle  to  strive  to 
force  them  together  within  a  common  interna- 
tional organization. 

Value  of  But  to  admit  all  this  is  not  to  reduce  the  law 

International         r  •  •    •    i  i    •  •    •  <*i 

Law  of  nations  to  a  trivial  and  ignominious  rok. 

Having  conceded  its  defects,  we  must  likewise 
recognize  its  virtues.  At  a  time  of  abnormal 
stress,  when  it  is  subjected  to  much  criticism 
of  an  undiscriminating  character,  we  must  in 
all  fairness  try  to  appreciate  the  positive,  ef- 


INTERNATIONAL  REALITIES  19 

fective   value   and   influence   of  International 
Law. 

In  ordinary  times  of  peace  the  statesmen  re-  international 

Law  and 
Diplomacy 


sponsible  for  the  conduct  of  international  rela-  Law  ai 


tions  carry  on  an  immense  variety  of  delicate 
negotiations  based  on  an  avowed  respect  for 
generally  accepted  principles  of  International 
Law.  We  do  not  ordinarily  note  the  successes 
of  Diplomacy;  we  note  only  its  failures.  Never- 
theless it  is  unquestionably  true  that  in  normal 
times  of  peaceful  intercourse  Diplomacy  relies  im- 
plicitly on  the  law  of  nations  in  the  settlement  of 
many  questions,  frequently  of  a  grave  character. 

When  questions  of  a  complicated,  trying  Arbitration 
nature  do  not  yield  readily  to  diplomatic  treat- 
ment, Diplomacy  then  calls  in  the  aid  of  Ar- 
bitration. In  this  event  Arbitration,  though 
hardly  functioning  in  every  respect  as  a  court 
of  justice,  endeavors  within  the  scope  of  its 
powers  to  pay  homage  to  the  law  of  nations. 
The  decisions  of  The  Hague  Arbitration  Tri- 
bunals bear  eloquent  testimony  to  this  fact. 

But  perhaps  the  most  significant  fact — and  international 
one  that  is  generally  ignored,  even  by  eminent  Municipal 
authorities  of  the  standing  of  Elihu  Root — is 
that  the  courts  of  all  nations  both  in  times  of 


20  INTERNATIONAL  REALITIES 

war  and  peace  are  constantly  rendering  impor- 
tant decisions  based  directly  on  the  law  of  na- 
tions, decisions  which,  it  must  be  emphasized, 
are  duly  enforced.  What  is  more,  these  courts 
do  not  hesitate  to  declare  that  they  are  apply- 
ing a  law  which  is  every  whit  as  much  entitled 
to  respect  as  Municipal  Law.  When  the  Su- 
preme Court  of  the  United  States  affirms  that 
International  Law  is  law,  it  would  seem,  in 
spite  of  casuistic  reasoning  to  the  effect  that  it 
becomes  Law  only  as  a  part  of  Municipal  Law, 
there  should  be  no  further  doubt  concerning  its 
complete  validity.  Incidentally,  a  most  inter- 
esting instance  of  the  homage  paid  to  Inter- 
national Law  in  time  of  war  is  a  recent  de- 
cision of  the  Supreme  Court  of  the  German 
Empire  upholding  the  right  of  a  French  cit- 
izen, now  in  the  French  army,  to  a  patent 
which  a  German  firm  had  sought  to  infringe. 

True  It  is  important  that  we  should  not  fail  to 

international    understand  the  basic  principle  that  constrains 
Law  the  courts  of  all  nations  to  respect  the  rules  of 

International  Law.  The  basic  principle  which 
establishes  judicial  precedents  and  crystallizes 
International  Law  as  a  science,  is  that  the  in- 
terests of  nations  must  be  mutually  respected 
because  of  what  Gareis  well  terms  "anticipated 


INTERNATIONAL  REALITIES  21 

advantages  of  reciprocity  as  well  as  fear  of  re- 
taliation."1 

This  powerful  sanction,  this  compulsive  force 
of  reciprocal  advantage  and  fear  of  retaliation, 
is  nothing  else  in  its  essence  than  the  Golden 
Rule  as  formulated  by  Thomasius:  "Do  unto 
others  for  thine  own  sake  what  thou  wouldst 
that  others  should  do  unto  thee,  and,  in  so 
doing,  accept  a  law  from  which  thou  canst  not 
escape."2  Is  it  not  in  reality  the  only  safe 
fundamental  principle  for  international  rela- 
tions ?  As  a  sheer  utilitarian  rule  of  conduct — 
modified,  if  you  will,  by  elevated  ethical  or  re- 
ligious concepts — I  venture  to  assert  that  it  is 
the  most  rational,  practical  basis  for  the  science 
of  International  Law.  There  can  be  no  more 
effective  sanction  for  law  than  an  appeal  to  the 
enlightened  self-interest  of  men. 

Our  task,  therefore,  as  defenders  and  up-  The  task 
builders  of  International  Law,  becomes  one  of 
determining  the  specific  mutual  interests  which 
nations  are  prepared  to  recognize;  and  then  to 
endeavor,  in  a  spirit  of  toleration,  friendly  con- 
cern, scientific  open-mindedness,  to  formulate 
the  legal  rights  and  obligations  which  these  in- 

1  Science  of  Law,  p.  288. 

2  Lorimer,  T™j+if?'J*r-*f-I-"f'LQf  Nations*  I,  in. 


22  INTERNATIONAL  REALITIES 

terests  entail.  Having  come  to  a  substantial 
agreement  concerning  the  law  itself,  we  may 
then  properly  turn  to  the  task  of  securing  the 
most  effective  agencies  for  its  interpretation  and 
enforcement. 

The  nations  of  the  earth  are  far  from  ready 
to  be  ruled  by  a  common,  sovereign,  political 
authority.  Their  interests  and  ways  of  think- 
ing are  still  too  antagonistic  for  that.  The 
great  preliminary  work  of  facilitating  closer 
relations,  of  removing  misunderstandings,  of 
reconciling  conflicting  points  of  view,  of  iden- 
tifying various  interests,  of  fostering  common 
conceptions  of  rights  and  obligations,  remains 
yet  to  be  done.  We  can  hardly  venture  to  ex- 
press the  hope  that  this  frightful  clash  of  in- 
terests now  going  on  in  Europe  may  serve  in 
the  end  as  a  solemn  and  stern  appeal  to  reason 
itself;  that  the  warring  nations  may  be  prepar- 
ing to  meet  each  other  in  a  sober,  rational 
spirit,  to  seek  to  determine  and  respect  their 
mutual  interests  on  the  practical,  utilitarian 
basis  of  the  Golden  Rule.  But  surely,  if  such  a 
spirit  should  prevail,  there  would  be  no  great 
need  of  international  tribunals  or  of  "leagues 
to  enforce  peace."  The  absence  of  that  spirit 
could  only  mean  the  necessity  of  future  wars. 


CHAPTER  II 
NATIONALISM 
The  origin  and  nature  of  the  State  has  been  origin  and 

naturt 
State 


a  favorite  theme  of  speculation    by   political  r 


theorists.  We  are  familiar  with  the  attempts 
of  Hobbes  and  Locke  to  find  the  origin  of  the 
State  in  the  need  felt  by  man  to  escape  from 
the  chaos  of  an  assumed  state  of  nature.  We 
likewise  recall  the  theories  of  Rousseau  and 
others  concerning  a  "Social  Compact." 

Of  much  greater  value  than  the  speculations 
of  theorists  and  philosophers  would  be  a  care- 
ful analysis  of  the  reasons  which  led  the  Pil- 
grims to  erect  a  State  in  the  New  World.  We 
might  better  understand  the  origin  and  nature 
of  the  State  if  we  understood  the  aspirations 
of  the  Poles,  the  ambitions  of  the  Balkan  States, 
and  the  aims  of  the  Albanians,  the  latest  claim- 
ants to  international  recognition. 

The  object  of  the  State  may  be  variously  Object  of  the 
expressed  as  the  pursuit  of  happiness,  liberty  state 
of  conscience,  the  good  of  the  greatest  number, 
power,  or  freedom  in  general.     Cicero's  defini- 

23 


24 


INTERNATIONAL  REALITIES 


Community  of 


Factors 


interests 


Language 


tion  of  a  State  as  "a  body  of  men  united  to- 
gether for  the  purpose  of  promoting  their  mu- 
tual safety  and  advantage  by  their  combined 
strength"1  is  as  satisfactory  as  any. 

As  a  matter  of  fact,  International  Law  is 
not  greatly  concerned  with  the  origin  and  na- 
ture of  the  State,  provided  it  does  not  exist  for 
the  purpose  of  annoying  or  plundering  its  neigh- 
bors. The  vitally  significant  fact  which  Inter- 
national Law  must  recognize  is  that  there  is  a 
natural  tendency  among  men  to  gravitate  to- 
gether in  distinct  national  groups,  in  accordance 
with  common  sympathies  and  a  community  of 
interests. 

It  is  therefore  of  fundamental  importance  to 
analyze  carefully  the  factors  which  serve  to 
constitute  that  community  of  interests  which 
we  must  recognize  as  determining  the  separate 
existence  of  States.  What  are  these  prefer- 
ences, these  prejudices,  these  special  interests 
which  lead  men  to  establish,  maintain,  and 
deeply  cherish  distinct  national  communities  ? 

T  tar^uag£.  would  seem  to  be  the  strongest  tie 
that  binds  men  together.  The  immediate  need 
is  to  readily  understand  each  other.  The  sound 

1  De  Rep.  I,  1.  25. 


NATIONALISM  25 

of  the  mother  tongue  creates  a  sense  of  near 
kinship.  Confidence  and  sympathy  are  at  once 
established.  And  in  more  highly  civilized 
States  the  possession  of  a  common  literature 
greatly  contributes  to  the  creation  of  senti- 
mental attachment  and  national  devotion. 


JJeligion^  has  been  a  most  potent  factor  in  Religion 
the  creation  of  a  community  of  interest,  as 
seen  in  the  founding  of  Plymouth.  It  is  ap- 
parent in  civilized,  as  well  as  primitive  com- 
munities, that  men  prefer  to  associate  with 
those  who  share  their  religious  beliefs  or  super- 
stitions, and  worship  in  the  same  manner. 
The  most  striking  example  of  this  is  found  in 
the  Ottoman  Empire  where  the  Moslems  iden- 
tify the  State  with  the  Church.  On  the  other 
hand,  the  disruptive  influence  of  rival  religious 
cults  within  the  State  is  painfully  seen  in  Ire- 
land where  Catholics  and  Protestants,  in  the 
classic  words  of  Charles  Lever,  "are  fighting 
like  devils  for  conciliation,  and  hating  each 
other  for  the  love  of  God." 

Common    political   instincts    and    principles  Political 
naturally  draw  men  together.    Some  prefer  the  sympa    es 
patriarchal  system  of  government;  others  the 
town    meeting.      Under    their    own    peculiar 


26  INTERNATIONAL  REALITIES 

political  institutions  men  are  thus  enabled  to 
work  out  their  common  problems  with  the 
least  friction  and  the  greatest  efficiency.  Even 
within  the  borders  of  the  United  States,  with 
its  bewildering  confusion  of  racial  admixtures 
from  all  over  the  world,  it  is  essentially  the 
genius  of  Anglo-Saxon  political  institutions  that 
leavens  the  whole  mass  and  enables  us  to  or- 
ganize and  carry  on  successfully  our  communal 
life.  It  is  this  very  Angloj:&L\nn  conception  of 
individual  liberty^janj  political  organization 
which,  in  many  instances,  has  made  America 
the  "Land  of  Promise"  for  peoples  of  other 
nations  possessing  different  political  institu- 
tions. The  United  States  can  never  be  a 
completely  unified  nation  unless  native  and 
naturalized  Americans  alike  acknowledge  and 
cherish  our  Anglo-Saxon  institutions. 

Customs,  Out  of  these  three  elements — language,  re- 

traditions  i  •    •  i          i  •   •      i    •         •  •  i 

ligion,  and  political  instincts — spring  up  cher- 
ished customs,  folk-lore,  folk-songs,  dances, 
social  games,  pride  of  ancestors,  worship  of 
heroes,  in  sum,  those  traditions  .  which  Lord 
Bryce  has  said  constitute  the  greatness  of  na- 
tions. All  these  elements  and  traditions  com- 
bine to  foster  that  strong  sentimental  attach- 
ment which  we  characterize  as  patriotism,  love 


NATIONALISM  27 

of  country.  Where  these  elements  are  lacking; 
where  a  people  have  no  vivid  sense  of  a  rich 
inheritance  of  common  traditions — as  in  cer- 
tain Spanish-American  Republics — the  inspira- 
tion and  strength  of  patriotism,  of  devotion  to 
country,  is  sadly  lacking  also. 

The  economic,  factor  is  obviously  of  great  Economic 

•  •         i  •  r  *  c   factor 

importance  in  the  creation  or  a  community  or 
interests.  This  is  particularly  true  of  countries 
so  well  unified  economically  as  Denmark,  Hol- 
land, or  Norway.  But  it  is  also  true  of  countries 
possessing  such  heterogeneous  elements  as 
Austria-Hungary,  for  example,  where  there  is 
an  economic  need  of  markets  for  the  exchange 
of  varied  products,  agricultural  products  for 
manufactured  products,  etc.  It  would  seem 
clear  that  a  nation  which  can  provide  a  large 
variety  of  economic  resources  is  better  off  than 
the  nation  which  is  dependent,  wholly  or  in 
part,  on  other  countries  for  certain  necessaries. 

But  there  is  another  sense  in  which  the  eco-  Revenues 
nomic  factor  is  involved  in  determining  a  com- 
munity of  interests.  It  is  the  necessity  of  pro- 
viding sufficient  revenues  to  enable  a  State  to 
carry  on  its  political  organization  and  effectively 
care  for  the  needs  of  all  its  members.  Even 


28  INTERNATIONAL  REALITIES 

though  national  differences  might  become  min- 
imized in  the  process  of  time,  there  still  would 
remain  this  fundamental  need  of  an  economic 
organization  of  the  State,  It  would  seem  as  if 
many  Socialists  in  their  support  of  Internation- 
alism and  their  demand  for  the  elimination  of 
national  boundaries  quite  ignored  this  important 
fact,  which  is  indeed  closely  related  to  the  great 
problem  of  a  socially  organized  State. 

Geographical  Geographical  location  frequently  has  much  to 
do  with  the  formation  of  States.  Men  living 
together  on  an  island,  for  example,  have  every 
reason  for  uniting  in  a  common  political  organ- 
ization. It  would  have  been  practically  im- 
possible for  England,  Scotland,  and  Wales  to 
maintain  distinct  national  States.  Moreover, 
the  peculiar  location  of  Ireland,  as  territory 
geographically  appurtenant/  to  Great  Britain, 
demands  a  subordination  of  nationalistic  de- 
sires to  the  common  welfare  of  the  people  of  the 
British  Isles.  Finland  is  another  case  in  point, 
as  also  Sicily  in  its  relation  to  Italy.  Geo- 
graphically speaking,  the  Bosphorus  and  the 
Dardanelles  are  so  essential  to  Russia  as  great 
natural  gates,  that  Constantinople  and  its  en- 
virons should  logically  be  closely  related  to  the 
Empire  of  the  Czar.  Panama  has  a  unique  sit- 


NATIONALISM  29 

uation  as  an  international  highway,  of  greater 
significance  to  the  United  States  and  the  world 
in  general  than  to  Colombia  and  the  neighbor- 
ing Republics. 

In  some  instances  the  existence  of  a  common  External 
enemy  has  served  like  the  external  pressure  of  pressure 
hoops  on  a  barrel  to  foster  a  national  commu- 
nity of  interests.  Switzerland  and  Austria- 
Hungary  are  interesting  examples  of  this.  In 
spite  of  their  wide  diversity  of  interests,  and 
even  of  their  antagonisms,  the  battles  of  the 
Swiss  and  their  constant  fear  of  a  common 
enemy  have  undoubtedly  welded  them  into 
one  solid  nation.  In  the  case  of  Austria- 
Hungary,  the  absence  of  a  common  enemy,  un- 
less the  community  of  economic  interests  should 
prove  overwhelming,  would  probably  lead  to  a 
separation  of  elements  so  diverse  and  antag- 
onistic. 

In  our  analysis  of  the  factors  which  help  Factors  vary 
create  a  distinct  community  of  interests  and 
thus  justify  the  establishment  and  maintenance 
of  separate  nations,  it  is  evident,  as  in  the  case 
of  Switzerland,  that  all  these  factors  do  not 
simultaneously  appear  in  every  instance.  There 
may  be  an  apparent  clashing  of  interests  with 


30  INTERNATIONAL  REALITIES 

only  one  special  interest  predominant;  and  yet 
there  will  be  found  a  real  community  of  na- 
tional sympathies  and  interests.  It  is,  of 
course,  impossible  to  analyze  as  exactly  as  in 
a  chemical  laboratory  the  essential  ingredients 
of  a  nation.  All  that  we  can  say  with  con- 
fidence is,  that  men  are  drawn  together  in 
separate  groups  by  recognized  common  in- 
terests, and  that  International  Law  is  bound  to 
be  formed  and  applied  in  harmony  with  these 
nationalistic  interests.  , 

Nationalism          Professor  Vinogradoff  has  spoken  of  a  nation 

and"Kultur"  «       i      j          r  •      •  i  •    i 

as  a  body  or  convictions  which  are  more  or 
less  expressed  in  itsjaanners,  its,  language,  the 
notions  of  its  mind,  and  of  its  heart,  the  rela- 
tions of  its  society,  in  fact,  its  whole  life."1 
This  would  seem  substantially  to  express  all 
that  is  legitimately  implied  in  the  German  use 
of  the  term  Kultur;  namely,  that  peculiar  body 
of  national  interests  which  differentiate  one 
nation  from  another,  and  which  justify  their 
separate  existence. 

Ethical  This  brings  us  to  a  realization  of  the  ethical 

justification  of  the  State,  and  of  the  spirit  of 
nationalism.  Is  it  not  in  reality  the  claim  of 

lHibbert  Journal,  January,  1915. 


NATIONALISM  31 

freedom,  the  greatest  possible  freedom,  of  dis- 
tinct groups  of  men  to  work  out  their  ethical 
problems  according  to  their  own  powers  of 
reason  and  their  own  lights  ?  Is  it  not,  on  a 
magnificent  scale,  the  claim  of  the  individual 
for  freedom  of  thought,  of  investigation,  of 
conscience,  of  worship  itself?  Is  not  the  world 
vastly  richer  in  an  ethical  sense  through  the 
contributions  of  England,  Russia,  Germany, 
the  United  States,  Holland,  and  Japan  ? 

It  would  seem  evident  that  it  would  be  a  Ethnic  and 
great  loss  to  civilization  if  there  were  any  seri-  e 
ous  attempt  to  suppress  and  obliterate  national 
lines.  The  privilege  mutually  conceded  by  the 
Russians,  the  Spaniards,  the  Swedes,  the  Greeks, 
the  French,  and  all  other  nationalities,  to  work 
out  their  own  ethical  problems  along  indepen- 
dent lines,  would  seem  to  be  a  logical  necessity 
from  the  very  nature  of  society.  Not  only  is 
this  true,  but  it  would  also  appear,  as  Lorimer 
suggests,  that  "ethnology  will  probably  teach 
us  that  the  ethical  ideal  may  be  realized  in 
accordance  with  ethnical  ideals  more  diverse 
than  we  at  present  imagine."1  The  world  may 
need  more  nationalities,  rather  than  less ! 

1  Institutes  of  the  Law  of  Nations,  I,  p.  99. 


INTERNATIONAL  REALITIES 


The  enemies 
of 

nationalism 
Statesmen 


Idealists 


It  is  a  painful  fact  that  many  idealists  are 
now  affiliating  themselves  with  statesmen  as 
the  enemies  of  nationalism.  For  centuries  the 
statesmen  of  Europe  in  deference  to  the  vicious 
and  disastrous  principle  of  "Balance  of  Power" 
have  oppressed  and  repressed  nationalities; 
have  slashed  the  map  of  Europe  with  a  ruthless 
hand.  Peoples  have  been  bartered  and  trans- 
ferred like  cattle.  Each  attempt  at  an  "equilib- 
rium of  forces,"  as  for  example  the  Treaty  of 
Berlin,  has  resulted  in  discontent,  unrest,  and 
eventually  in  war.  Witness  the  Balkan  War  of 
1912  and  its  horrible  aftermath,  the  Great  War 
of  1914 !  A  civilization  which  could  tolerate 
the  denial  of  the  just  claims  of  the  Serbian  na- 
tion, and  of  the  Serbs  as  a  race,  has  surely 
merited  the  fearful  chastisement  it  is  now  re- 
ceiving. 

At  a  time  when  men  of  affairs  are  just  be- 
ginning to  realize  the  utter  folly  of  the  prin- 
ciple of  "Balance  of  Power,"  and  the  criminal 
injustice  of  thwarting  nationalistic  aspirations, 
it  is  profoundly  discouraging  to  find  idealists, 
in  the  name  of  world  peace,  the  brotherhood  of 
man,  denouncing  the  spirit  of  nationalism  as 
essentially  primitive,  savage,  provincial,  chau- 


NATIONALISM  33 

vinistic,  narrow,  antagonistic,  and  inimical  to 
the  spirit  of  Internationalism.  Some  go  so  far, 
even,  as  to  quote  with  evident  approval  the 
cynical  sneer  of  Johnson  that  "patriotism  is 
the  last  refuge  of  scoundrels." 

It  is  difficult  to  understand  how  love  of  fam-  Nationalism 
ily,  devotion  to  one's  nearest  of  kin,  interest  in 
the  concerns  of  his  neighbor,  loyal  service  to 
his  own  immediate  community,  consecration  to 
the  welfare  of  the  greatest  number,  deep,  fer- 
vent love  of  country — in  sum,  how  such  pa- 
triotism is  in  any  way  ignoble,  or  hostile  to  the 
great  cause  of  Internationalism.  It  is  difficult, 
in  fact,  to  understand  how  any  man  can  love 
and  serve  mankind  in  general  if  he  has  not 
first  learned  to  love  and  serve  his  own  family 
and  community.  The  world  may  well  be  im- 
patient of  the  vague  preachings  of  idealists 
which  do  not  find  their  logical  expression  in 
local  service.  There  is  surely  no  reason  to 
doubt  that  the  spirit  of  enlightened  self-interest 
should  inevitably  lead  a  man  from  selfish  con- 
cerns to  altruistic  concern  in  the  affairs  of  his 
neighbor,  and  so  by  natural  steps  to  a  compre- 
hension of  the  rights  and  needs  of  mankind  in 
general,  and  of  nations  in  particular. 


34  INTERNATIONAL  REALITIES 

Nationalism,  Whatever  the  crimes  of  statesmen  and  the 
international  fogies  of  idealists,  we  are  now  confronted  with 
Law  the  spirit  of  nationalism  in  all  its  dynamic, 

explosive  power,  its  crude  reality,  and  naked 
truth.  There  is  a  Russian  proverb  to  the 
effect  that  if  one  buries  the  Slavic  spirit  be- 
neath the  strongest  fortress,  it  will  inevitably 
blow  the  fortress  to  pieces.  It  is  this  power, 
whether  it  be  in  Germany,  Russia,  Serbia,  or 
France,  that  is  now  shaking  and  staggering  the 
world.  Whether  we  like  it  or  not,  this  is  the 
brute  fact  we  must  face.  Shall  we  continue  to 
try  to  suppress,  restrict,  or  thwart  the  legiti- 
mate claims  of  nationalism  ?  Will  we  not  rather 
frankly  recognize  this  inherent  tendency  of  men 
to  group  together  according  to  their  mutual 
preferences,  their  national  community  of  in- 
terests ?  Is  it  not  the  duty  of  thoughtful  men 
to  grapple  honestly  with  this  basic  problem,  and 
endeavor  in  a  scientific  spirit  to  discover  the 
laws  of  association  which  should  determine 
the  formation  and  development  of  nations  ?  It 
would  seem  as  if  the  Great  War  were  a  demon- 
stration of  the  failure  of  unscientific  principles 
among  nations,  and  of  the  supreme  need  of 
other  principles.  International  Law  can  no 
longer  rest  on  a  fictitious  status  quo.  It  cannot 


NATIONALISM  35 

be  asked  to  protect  interests  which  are  false  or 
criminal. 

If  we  concede,  therefore,  the  inevitability,  Essentials  of 
and    the    justice   of  nationalism,   as  the  only  * 
sound  basis  of  the  whole  system  of  Interna- 
tional Law,  we  are  led  to  inquire:   what  are 
the  true  essentials  of  the  State  as  an  interna- 
tional entity  ?     What  are  the  laws  of  associa- 
tion which  determine  the  organization  and  de- 
velopment of  nations  ?     What  do  men  require 
in  order  to  work  out  their  national  problems  ? 

The  first  essential  would  obviously  appear  to  Population 
be  an  adequate  number  of  men  vividly  con- 
scious of  their  mutual  interests,  able  to  main- 
tain a  State  worthy  of  international  respect, 
and  to  fulfil  its  international  obligations.  It  is 
difficult  to  treat  seriously  so  minute  a  Republic 
as  that  of  San  Marino,  or  Andorra.  A  certain 
weight  of  numbers  is  required  in  a  State  to 
warrant  its  formal  inclusion  in  the  family  of 
nations.  Small  aggregations  of  men  feeling  a 
strong  community  of  interests  more  naturally 
find  their  interests  best  served  as  autonomous 
communities  under  the  protection  and  guidance 
of  larger  States.  If,  however,  it  should  become 
apparent  that  the  Jews  were  fully  prepared  in 


INTERNATIONAL  REALITIES 


Territory 


Variety  of 
resources 


sufficient  numbers  to  maintain  a  separate  na- 
tional State,  it  would  seem  that  somewhere  on 
the  face  of  the  wide  world  a  place  might  be 
found  to  permit  them,  in  all  justice,  to  achieve 
their  nationalistic  aspirations. 

Territory  would  obviously  seem  to  be  the 
next  essential  of  the  State.  It  is,  of  course, 
possible,  theoretically,  in  an  advanced  stage  of 
society,  to  postulate  a  political  association  of 
men  such  as  the  Jews  or  the  Gypsies  having  no 
territorial  possessions  whatever,  very  much  as 
it  is  possible  that  Switzerland  might  maintain 
a  navy  without  seaports  of  its  own.  Under 
actual  conditions,  however,  it  is  evident  that 
nations  need  definite  lands  to  cultivate,  and 
settle  on,  for  the  effective  protection  and  ad- 
vancement of  their  interests. 

The  chief  characteristic  of  national  territory, 
then,  is  a  sufficient  area  with  a  variety  of  re- 
sources adequate  for  the  support  of  its  inhabi- 
tants. Under  modern  standards  of  living  and 
intimate  intercommunications,  it  is,  of  course, 
well-nigh  impossible  for  any  nation  to  be  com- 
pletely self-sufficient.  There  is  a  vivid  and,  at 
the  same  time,  a  gratifiying  sense  of  interde- 
pendence among  nations.  It  still  remains 
true,  however,  that  the  ideal  condition  for  a 


NATIONALISM  37 

nation  is  to  possess  such  a  variety  of  natural 
resources  as  to  preserve  it  from  the  unfortunate 
status  of  dependence  on  any  other  nation. 
The  United  States  is  wonderfully  blessed  in 
this  regard;  Montenegro  and  Albania  are  most 
unfortunate.  In  fact,  when  a  nation  like 
Montenegro  finds  itself  so  restricted  in  terri- 
tory that  it  cannot  support  its  people  or  main- 
tain its  government,  it  then  becomes  necessary 
to  expand  or  expire. 

This  economic  need  of  adequate  territory  and  Economic 
resources  is  increasingly  apparent,  in  view  of 
the  disguised  kind  of  warfare  in  the  interna- 
tional struggle  for  existence  and  for  commercial 
expansion,  which  takes  the  form  of  protective 
tariffs.  There  is  something  ominous  in  the 
announced  intention  of  the  Entente  Allies  to 
unite  in  concerted  measures  for  the  permanent 
protection  of  their  industries  and  commerce. 
Under  such  hostile  conditions  in  times  of  peace, 
it  becomes  of  the  most  vital  importance  to 
nations  that  they  should  be  as  far  as  possible 
self-sufficient  in  respect  to  extent  of  territory 
and  variety  of  resources. 

The  adequate  protection  of  economic  inter-  Rivers,  ports 
ests,  as  also  the  military  security  of  the  State 
as   a  whole,   demands  the  control  of  natural 


38  INTERNATIONAL  REALITIES 

avenues  of  communication  and  transportation, 
such  as  rivers,  valleys,  bays,  coasts,  and  es- 
pecially ports.  It  has  been  well  said  that 
"ports  are  the  lungs  by  which  nations  breathe," 
and  a  nation  shut  off  from  the  ocean  highways 
of  commerce,  as  Serbia  has  been  deliberately 
shut  off,  is  in  grave  danger  of  economic,  as  well 
as  of  military,  strangulation. 

The  economic  development  and  security  of  a 
nation  is  greatly  facilitated  if  it  completely  con- 
trols a  great  navigable  river — the  Mississippi, 
for  example.  This  development  and  security  is 
correspondingly  endangered  if,  as  in  the  case  of 
the  Danube,  other  nations  share,  or  even  for- 
bid, such  control. 

"Hinterland"  It  is  likewise  of  vital  importance  to  a  nation 
to  possess  the  "hinterland"  lying  behind  a 
valuable  strip  of  coast,  or  forming  the  natural 
drainage  area  of  a  great  river  system.  Vice 
versa,  it  is  essential  to  a  nation  to  possess  the 
coast  forming  a  natural  outlet  for  the  "hinter- 
land," as  in  the  case  of  Montenegro,  which  was 
arbitrarily  denied  possession  of  Cattaro,  its 
natural  port  of  entry.  The  ownership  by  the 
United  States  of  the  Alaskan  Panhandle,  the 
long  narrow  strip  of  coast  barring  exit  and 
egress  to  the  natural  ports  of  the  Canadian 


NATIONALISM  39 

Northwest,  is  an  obstacle  in  the  way  of  the 
proper  development  of  that  "hinterland." 

This  principle  of  the  "hinterland"  has  been 
recognized  by  the  European  Powers  in  their 
scrambles  for  territory  in  Africa.  There  is  no 
reason  whatever  why  it  should  not  be  recognized 
in  any  future  readjustments  of  territory  both 
in  Europe  and  America. 

Of  similar  importance  is  the  principle  that  a  Adjacent 
nation  should  properly  own   and  control  the  lslands 
islands   lying   off  its    coasts.      The    return   of 
Heligoland  to  Germany  by  England  was  thus 
entirely  fitting.     So  likewise  the  cession  of  the 
Bermudas    and   the    Bahamas   to   the   United 
States  would  be  eminently  just.    A  fair  quid  pro 
quo  would  be  the  Panhandle  of  Alaska. 

There  are,  of  course,  situations  where  there  Conflict  of 
is  an  obvious  conflict  of  interests,  as  in  the  case  J?terests; 

rree  port*" 

of  Trieste.  This  port,  formerly  Italian  and 
still  Italian,  probably,  in  racial  sympathies, 
is  essential  to  the  Austrian  "hinterland."  In 
all  such  anomalous  situations,  if  a  territorial 
readjustment  be  found  excessively  difficult,  the 
least  that  can  be  conceded  is  the  establishment 
of  "free  ports,"  as  in  the  case  of  Salonica,  a 
Greek  port  subject  to  the  free  use  of  Serbia. 


INTERNATIONAL  REALITIES 


Boundaries 


Political 
essentials 


Considerations  such  as  these  must  be  held  in 
mind  when  it  comes  to  defining  the  boundaries 
of  nations.  Not  only  must  nationalistic  claims 
be  respected  as  far  as  possible,  but  economic  and 
military  interests  must  be  adequately  protected. 
Mountains,  as  a  rule,  make  better  boundaries 
than  rivers.  The  economic  and  other  inter- 
ests of  the  people  inhabiting  a  river-valley — the 
Rhine,  for  example — are  usually  so  identical  as 
to  render  a  river  boundary  artificial  and  ob- 
noxious, a  constant  source  of  friction.  Military 
considerations  may  largely  determine  the  con- 
trol of  ocean  straits  and  channels.  Russia,  for 
this  reason  alone,  if  for  no  other,  is  bound  to 
view  with  apprehension  the  control  by  other 
nations  of  Constantinople  and  its  straits  which 
constitute  the  natural  entrance,  the  couloir  of 
Southern  Russia.  So  likewise,  though  we  speak 
of  the  "neutralization"  of  the  Panama  Canal, 
an  artificial  ocean  strait,  its  absolute  control 
and  protection  must  of  necessity  remain  with 
the  United  States. 

Such  in  brief  are  some  of  the  physical  essen- 
tials of  a  State.  The  next  essential  to  be  con- 
sidered is  the  political  constitution  of  the  State 
viewed  from  the  international  standpoint.  If 
nations  are  to  exist  as  separate  entities,  how  are 


NATIONALISM  41 

they  to  organize  most  effectively  to  meet  to- 
gether, and  transact  their  mutual  affairs  ?  How 
can  they  best  guarantee  respect  for  their  mutual 
rights  and  the  fulfilment  of  their  just  obliga- 
tions ? 

Lorimer  holds  that  the  possession  of  what  he  "Reciprocat- 
terms   a   "reciprocating  will"    is   an   essential  m«wlU 
characteristic  of  the  State.     If  nations  are  to 
enter  into  agreements  to  respect  and  guarantee 
each  other's  rights,  they  must  have  the  will 
and  the  power  to  carry  out  their  agreements. 
An  anarchical  State  would  be  an  obvious  im-  Anarchism 
possibility    from    the    international    point    of 
view,  as  there  could  be  no  sure  means  of  in- 
tercourse nor  certainty  of  respect  for  interna- 
tional rights. 

If  an  anarchical  State  is  incapable  of  express-  Despotism 
ing  and  enforcing  an  international  will,  so  like- 
wise a  despot  is  not  properly  qualified  to  pledge 
the  will  of  a  State.  The  people  may  be  phys- 
ically incapable  of  restraining  their  ruler;  he 
may  arbitrarily  contract  loans,  hypothecate 
the  revenues  of  the  State  for  generations,  and 
enter  into  momentous  obligations.  He  may 
cede  valuable  portions  of  territory,  or  even 
hand  over  the  entire  State.  Other  nations,  to 


42  INTERNATIONAL  REALITIES 

their  own  advantage,  may  consider  a  despot 
properly  qualified  to  perform  such  acts.  Yet 
the  fact  remains  that  the  "reciprocating  will" 
of  an  entire  people  may  have  been  completely 
ignored,  and  the  right  of  nullifying  the  acts  of 
their  ruler  held  in  abeyance  until  the  oppor- 
tunity to  revolt  should  arise. 

Under  such  conditions  international  agree- 
ments cannot  be  allowed  to  rest  on  so  uncer- 
tain and  untrustworthy  a  basis.  What  is  de- 
manded, in  the  name  of  international  fair  play 
and  reason,  would  seem  clearly  to  be  the 
"reciprocating  will"  of  a  whole  people.  They 
must  know  what  they  are  assenting  to,  and 
must  not  be  committed  without  their  consent 
to  more  than  they  are  willing  or  able  to  fulfil. 
This  necessarily  implies  that  international 
treaties  should  never  attempt  to  place  a  burden 
on  subsequent  generations;  and  that  the  terms 
of  such  agreements  must  needs  be  for  brief 
periods  of  time,  subject  to  the  right  of  abroga- 
tion or  renewal. 

significance  Viewed  in  this  light,  the  internal  constitution 
of  States  is  of  great  concern  to  nations  in  their 
mutual  relations.  It  is  curious  to  reflect  in  this 
connection  that  the  United  States,  owing  to 


NATIONALISM  43 

its  peculiar  Constitution,  is  not  able  effectively 
to  safeguard  the  rights  of  aliens  as  guaranteed 
by  treaties  and  International  Law.  This  fact 
has  been  clearly  brought  out  in  the  questions 
concerning  the  rights  of  the  Japanese  in  Cali- 
fornia. The  inability  of  the  United  States  to 
control  the  acts  of  the  separate  States  of  the 
Union  is  no  satisfactory  answer  to  the  just 
complaints  of  foreigners  and  of  their  aggrieved 
governments.  Legislation  is  urgently  required 
to  give  the  Federal  Government  the  power  and 
the  authority  necessary  to  make  its  "recipro- 
cating will"  toward  other  nations  completely 
effective. 

Consider  also  the  case  of  Germany.  The  con-  Defects  of 
trol  of  the  German  Empire  by  the  Kingdom  of 
Prussia;  the  control  of  Prussia  in  turn  by  a 
Junker  minority;  and  the  control  of  that  mi- 
nority by  a  militaristic  class  which  may  at  any 
moment  precipitate  a  gigantic  war,  is  a  por- 
tentous fact  which  has  long  kept  the  whole  of 
Europe  in  a  constant  state  of  fear,  and  subject 
to  the  burden  of  impossible  armaments.  What- 
ever the  rights  or  wrongs  of  the  Great  War  may 
be,  it  would  seem  certain  that  the  welfare  of 
Europe  and  of  the  whole  world  demands  that 
power  of  such  terrible  magnitude — the  power 


44 


INTERNATIONAL  REALITIES 


Democratic 
government 
the  ideal 
government 


"Moral 
personality" 
of  the  State 


to  pledge  or  overthrow  the  "reciprocating  will" 
of  the  German  Empire — should  be  taken  from 
the  hands  of  a  militaristic  minority,  and  placed 
in  the  hands  of  the  German  people  as  a  whole. 

The  ideal  government,  therefore,  from  the 
international  point  of  view,  is  the  democratic, 
broadly  representative  government,  whether 
as  a  republic  or  a  monarchy,  which  by  consti- 
tutional provisions  will  make  certain  that  the 
will  of  a  whole  people  is  properly  pledged  and 
enforced,  and  is  in  slight  danger  of  being  mis- 
represented or  improperly  controlled.  As  Lori- 
mer  truly  says,  "Publicity  is  of  the  very  es- 
sence of  constitutional  government,  whether 
monarchical  or  republican.  Despotic  and  even 
oligarchic  governments  may  tell  a  false  story 
to  the  world;  but  a  constitutional  government 
thinks  aloud  and  invites  the  world  to  listen. 
Hence  the  exceptional  international  confidence 
which  constitutional  States  always  inspire."1 

The  interesting  question  naturally  presents 
itself  at  this  point  whether  the  State  is  to  be 
considered  as  a  "moral  personality."  Is  it 
controlled  by  the  same  standards  of  conduct 
as  the  individual,  as  asserted  by  Ex-President 

1  Institutes  of  the  Law  of  Nations,  I,  p.  192. 


NATIONALISM  45 

Taft;  or  is  it  a  distinct  organism,  controlled  by 
utterly  different  laws,  as  asserted  by  the  Ger- 
man school  of  political  theorists  ? 

Bluntschli  has  stated  the  German  theory  of  German 
the  State  in  the  following  striking  words:  f£? °f  *' 

An  oil-painting  is  something  other  than  a  mere  aggre- 
gation of  drops  of  oil  and  color;  a  statue  is  something 
other  than  a  combination  of  marble  particles;  a  man  is 
not  a  mere  quantity  of  cells  and  blood-corpuscles;  and 
so  too  the  nation  is  not  a  mere  sum  of  citizens;  and  the 
State  is  not  a  mere  collection  of  external  regulations.  .  .  . 
In  the  State,  spirit  and  body,  will  and  active  organs  are 
necessarily  bound  together  in  one  life.  The  one  national 
spirit,  which  is  something  different  from  the  average  sum 
of  the  contemporary  spirit  of  all  citizens,  is  the  spirit  of 
the  State;  the  one  national  will,  which  is  different  from 
the  average  will  of  the  multitude,  is  the  will  of  the  State. 
...  To  extend  the  reputation  and  the  power  of  the 
State,  to  further  its  welfare  and  its  happiness,  has  uni- 
versally been  regarded  as  one  of  the  most  honorable  duties 
of  gifted  men.1 

Such  a  conception  seems  to  the  Anglo-Saxon  Anglo-Saxon 
mind  rather  as  the  creation  of  a  poetic  imagina-  * 
tion  than  a  statement  of  fact.    In  our  devotion 
to  the  spirit  of  individualism  we  are  accustomed 
to  think  of  the  State  somewhat  as  a  club,  a 
corporation,  a  partnership  for  the  transaction 

1  Theory  of  the  State,  26.  ed.,  pp.  19-22. 


46  INTERNATIONAL  REALITIES 

of  business  in  accordance  with  the  code  of 
honor  and  the  standards  of  conduct  of  the  in- 
dividual members  of  the  club  or  corporation. 
It  was  probably  for  this  reason  that  the  state- 
ment of  ex-President  Taft  to  the  effect  that  a 
nation  should  submit  its  questions  of  honor 
to  Arbitration,  as  readily  as  an  individual,  was 
received  with  such  general  assent. 

Merits  of  In  spite  of  its  exaggeration  and  unfortunate 

theor^n  manifestations,  the  German  point  of  view  con- 
cerning the  State  is  nevertheless  entitled  to 
thoughtful  consideration.  It  will  at  once  be 
conceded  that  the  State  cannot  have  all  the 
attributes  of  the  individual:  it  cannot  marry, 
love,  hate,  suffer,  sacrifice  itself,  sport,  gamble, 
amuse  itself,  etc.  Must  it  not  be  recognized 
that  corporate  responsibility  is  different  from 
individual  responsibility  ?  A  trustee  may  take 
chances  with  his  own  funds  that  he  will  not 
take  with  funds  intrusted  to  him.  A  man  will 
readily  sacrifice  himself,  and  at  times  the  in- 
terests of  his  immediate  family,  to  meet  what 
he  deems  to  be  an  obligation  of  honor.  The 
State  cannot  in  the  same  manner  sacrifice  it- 
self or  the  interests  of  existing  or  future  genera- 
tions. Washington  had  to  face  such  a  problem 
when  in  1793  it  was  made  to  appear  that  the 


NATIONALISM  47 

United  States  was  in  honor  bound  by  its  treaty 
of  alliance  with  France  to  take  up  arms  against 
England.  With  serenity  of  judgment  and  con- 
science— probably  against  his  personal  inclina- 
tions— Washington  was  able  to  withstand  the 
sentimentalists  and  pledge  the  United  States  to 
an  attitude  of  neutrality,  a  policy  which  has 
since  been  recognized  as  serving  the  highest  in- 
terests of  the  nation. 

There    is    a    profound    degree    of  truth    in  Distinction 
Bluntschli's  statement  that  "the  one  national  ^^uai^ 
will,  which  is  different  from  the  average  will  of  the  state 
the  multitude,  is  the  will  of  the  State."     The 
average  will  of  the  multitude  may  often  rep- 
resent a  compromise,  not  a  final,  incontrovert- 
ible judgment.    The  views  of  the  majority  may 
frequently  be  wrong,  and  the  minority  right. 
The  exaggerated  sense  of  obligation  and  honor 
of  either  the  majority,  the  minority,  or  of  those 
charged  with  immediate  responsibility  may  be 
utterly  dangerous  in  its  counsels. 

Those  on  whom  rests  the  burden  of  directing  Forces 
the  affairs  of  a  nation  come  to  realize  that  the  coni™m*& 

destinies  of 

destinies  of  nations  are  governed  by  mystefi-  nations 
ous,  all-powerful  forces  which  the  intellects  of 
statesmen  can  but  feebly  apprehend.     There 


48  INTERNATIONAL  REALITIES 

are  moments  when  the  personal  predilections, 
the  sensitive  standards  of  honor,  and  the  in- 
dividual sense  of  responsibility  of  rulers,  their 
advisers,  or  of  any  considerable  number  of 
conscientious  men,  count  for  very  little  in  the 
face  of  these  elemental  forces,  these  supreme 
laws  that  seem  to  be  controlling  the  destinies 
of  nations.  Whether  it  be  the  Reformation, 
the  American  Revolution,  the  Civil  War,  or 
the  Great  War  of  1914,  individual  standards 
of  conduct  are  of  little  service  to  such  men  as 
William  of  Orange,  Washington,  Lincoln,  Lee, 
Sir  Edward  Grey,  von  Jagow,  President  Wil- 
son, and  all  others  burdened  with  the  cares  of 
State.  They  cannot  turn  for  guidance  in  their 
bewilderment  to  the  uninformed  judgment  of 
the  people  at  large,  nor  can  they  even  appeal 
with  confidence  to  the  judgment  of  posterity. 
It  is  no  wonder  that  men  in  such  great  national 
crises  seek  in  all  humility  for  Divine  guidance, 
or  are  tempted  to  become  fatalists.  The  im- 
ponderable, unseen  factors  affecting  the  fate  of 
individuals  in  the  aggregate,  and  determining 
inexorably  the  destinies  of  nations,  are  so  mys- 
terious and  powerful  that  the  only  safe  rule 
for  statesmen  to  try  to  follow  is  the  old  Roman 
maxim,  Solus  populi  suprema  lex,  well  inter- 


NATIONALISM  49 

preted  by  Spinoza  as  meaning  that  the  supreme 
law  of  the  State  is  "the  security  of  the  State."1 
It  may  be  exceedingly  difficult  at  times  to  see 
clearly  where  the  security  of  the  State  may  lie, 
as  in  the  case  of  Bulgaria,  Roumania,  and  Greece 
in  the  Great  War.  It  would  seem  clear,  how- 
ever, that  the  security  of  the  State  is  a  sounder 
principle  of  action  than  the  suggestions  of  sen- 
timentalists and  morbid  individualists.  Only 
an  inability  to  make  clear  distinctions  can  lead 
one  to  assert  in  sweeping  terms  that  the  same 
laws  control  the  State  as  the  individual. 

This  is  not  to  eliminate  the  ethical  fac-  Ethical  factor 
tor  from  national  and  international  affairs, 
Christianity,  for  example,  has  accomplished 
very  much  in  introducing  more  humane  and 
just  standards  among  nations,  and  must  con- 
tinue to  exert  its  beneficent  influence.  So  far 
as  men  are  able  to  act  with  complete  freedom 
of  will,  ethical  considerations  in  affairs  of  state 
can  never  be  ignored.  There  must  be  no  con- 
fusion of  thought,  however,  no  false  analogies 
concerning  the  individual  and  the  State. 
Granted  that  it  is  not  easy  to  differentiate 
clearly  the  nature  of  the  State  from  the  nature 
of  the  individual,  this  much  would  seem  cer- 

1  Theologico-Political  Treatise,  chap.  XIX. 


50  INTERNATIONAL  REALITIES 

tain,  namely,  that  the  same  forces  and  prin- 
ciples do  not  operate  on  both  alike. 

The  In  earlier  times  the  British  Chancellor  of  the 

"conscience"     ^      ,  .  ,  .  .        -,,*,- 

of  the  state  Exchequer  was  given  the  quaint  title  of  Keeper 
of  the  King's  Conscience,"  and  as  such  was 
charged  with  the  solemn  responsibility  of  seeing 
that  justice  was  properly  administered.  If  we 
ask  ourselves  who  is  the  keeper  of  the  "con- 
science" of  the  State,  who  is  responsible  for  the 
administration  of  international  justice,  who  is 
in  a  position  to  pass  judgment  on  the  inter- 
national acts  of  the  State;  the  answer  is  not 
easy  to  find. 

"Sittiich-  It  is  true  that  some  men,  who  have  been 

keit " 

stirred  by  the  "vision  splendid"  of  a  great 
"Federation  of  Man,"  believe  in  the  efficacy 
of  an  international  "  Sittlichkeit"  a  universal 
concept  of  rights  and  obligations,  a  world- 
wide public  opinion  capable  of  judging  the  acts 
of  nations.  Such  idealists — and  they  are  not 
all  of  the  irresponsible  variety — would  gladly 
submit  all  of  the  international  acts  of  the 
State  not  only  to  the  judgment  but  to  the  final 
decision  of  other  States.  They  would  forbid 
aggressive  action  by  any  nation  to  obtain  re- 
dress for,  or  prevent  wrong-doing,  cruelty,  at- 


NATIONALISM  51 

tacks  on  the  lives  and  property  of  its  citizens 
by  other  nations.  All  such  matters  as  well  as 
questions  affecting  the  "vital  interests"  and 
the  "honor"  of  nations  should  be  referred  with- 
out hesitancy  to  international  inquiry  or  Ar- 
bitration. Arbitrators,  free  from  all  national 
and  racial  prejudices,  detached  from  the  at- 
mosphere of  world  politics,  and  blessed  with 
transcendent  wisdom,  should  be  allowed  to 
judge  the  acts  of  England  in  Egypt,  France  in 
Morocco,  Russia  in  Persia,  and  the  United 
States  in  Mexico  and  Colombia !  If  these  in- 
fallible jurists  should  decide  that  the  sovereign 
rights  of  the  Egyptians  had  been  outraged, 
then  England  must  get  out  of  Egypt.  If 
Colombia  was  entitled  to  do  as  it  pleased  with 
the  Isthmus  of  Panama,  then  the  United  States 
should  hand  over  the  Panama  Canal  to  its 
rightful  sovereign ! 

Reasoning  of  this  character  is  based  on  an  False 
extraordinary   misunderstanding   of  the   stern  assumPtlons 
facts  of  international  existence.     It  falsely  as- 
sumes a  family  of  nations  composed  of  peoples 
possessing    common    standards    of   right    and 
wrong,  common  conceptions  of  rights  and  ob- 
ligations.   It  falsely  assumes  the  existence  of  a 
world    Areopagus    capable   of  legislating   con- 


52  INTERNATIONAL  REALITIES 

cerning  the  vital  interests  of  States.  It  falsely 
assumes  the  existence  of  a  supreme  court  of 
the  world  entirely  competent  to  administer 
absolute  justice  between  Briton  and  Persian, 
Russian  and  Chinese,  German  and  Japanese. 
It  falsely  assumes  the  existence  of  an  interna- 
tional executive  and  police,  able  to  carry  out 
the  decrees  of  this  Areopagus  and  supreme 
court.  In  sum,  it  is  on  premises  of  this  ficti- 
tious character  that  the  bold  assertion,  that 
there  no  longer  exists  any  justification  for  acts 
of  international  self-redress,  is  based. 

Wo  common         It  is  a  simple  matter  for  people  who  reason 
natkms  m  tn^s  ^ree  manner  to  hold  that  nations  are 

not  the  "keepers  of  their  own  conscience." 
For  those,  however,  who  recognize  the  hard 
realities  of  international  existence,  who  per- 
ceive the  lamentable  lack  of  a  genuine  com- 
munity of  ideas,  of  principles  of  action,  of  a 
thorough  mutual  understanding  among  na- 
tions, and  specifically,  the  lack  of  a  common 
superior  to  make,  administer,  interpret,  and 
enforce  law,  it  is  impossible  to  intrust  the 
honor,  the  vital  interests,  the  "conscience"  of 
any  State  to  the  sense  of  honor  and  the  judg- 
ment of  other  nations.  In  the  broadest  possi- 


NATIONALISM  53 

ble  sense,  then,  it  would  seem  true,  as  Lorimer 
points  out,  that  "No  free  state  puts  either  its 
conscience  or  its  judgment  wholly  into  the 
keeping  of  any  other."1 

In  appropriating  thus  the  metaphor  of  the  state  a 
"conscience  of  the  State,"  we  do  not,  of  course,  ^^»  in 
mean  to  fall  into  the  error  of  attributing  to  legal  sense 
the  State  the  moral  personality  of  the  individ- 
ual. We  need  to  be  on  our  guard  against  that 
dangerous  fallacy.  If  we  speak  of  the  State 
as  a  "moral  person,"  as  the  courts  frequently 
do,  we  must  be  sure  of  our  terms.  We  should 
recall  that,  as  an  international  entity  possess- 
ing a  "reciprocating  will,"  with  which  other 
States  must  deal,  a  nation  is  bound  to  prose- 
cute its  rights  and  fulfil  its  obligations.  This 
is  all  that  the  courts  would  seem  to  imply,  and 
all  that  International  Law  assumes,  namely — 
that  in  its  legal  capacity  to  possess  rights  and 
incur  obligations,  the  State,  to  that  extent,  is  a 
"moral  person."  Unduly  to  expand  the  use  of 
this  term,  as  meaning  the  unrestricted  applica- 
tion of  individual  standards  of  conduct  to  the 
acts  of  the  State,  is  to  lead  to  confusion  of 
thought  and  to  dangerous  conclusions. 

1  Institutes  of  the  Law  of  Nations,  I,  p.  216. 


54  INTERNATIONAL  REALITIES 

Summary  By  way  of  summary,  in  our  consideration  of 

the  nature  of  the  State  and  of  the  claims  of 
Nationalism,  that  dynamic  force  which  compels 
recognition  as  the  very  basic  factor  of  Inter- 
national Law,  we  have  been  led  to  the  following 
general  conclusions: 

I.  The  inevitable  tendency  of  men  to  group 
together  into  nations  in  accordance  with  defi- 
nite   preferences,  sympathies,   and    a    genuine 
community  of  interests  must  clearly  be  recog- 
nized.   It  is  an  elemental  force  which  cannot  be 
ignored  or  thwarted.     It  should  be  allowed  to 
take  its  natural  course  in  accordance  with  cer- 
tain simple  principles. 

This  community  of  interests  necessarily 
varies  in  different  nations  but  can  usually  be 
clearly  ascertained.  It  may  include  common 
sympathies  of  language,  religion,  political  in- 
stincts, social  and  other  traditions.  It  cer- 
tainly demands  a  community  of  economic  in- 
terests. 

II.  The  main  essentials  of  a  properly  or- 
ganized nation  formed  in   accordance  with  a 
recognized  community  of  interests  would  seem 
to  be:    (i)  a  population  bound  together  with 
common  sympathies,  and  adequate  to  render 
the  State  vigorous  and  self-sufficient;   (2)  terri- 


NATIONALISM  55 

tory  including  varied  resources,  with  rivers, 
ports,  and  all  natural  facilities  for  economic 
organization;  and  (3)  a  government  so  repre- 
sentative of  the  people  as  to  enable  them  to 
deal  effectively  with  other  nations  and  fulfil 
their  just  obligations. 

III.  The  State  is  something  different  from 
the  individuals  who  compose  it,  and  is  not  gov- 
erned by  identical  laws.  It  is  a  profound  error 
to  confuse  individual  standards  with  national 
standards  of  conduct.  The  State  is  not  a 
moral  personality  in  the  same  sense  as  a  man. 
Owing  to  the  imponderable,  unseen  factors 
affecting  its  destinies,  acts  of  the  State  cannot 
be  judged  by  contemporary  opinion  or  that  of 
posterity  with  absolute  finality.  There  is  as 
yet  no  universal  authority  to  judge  fairly  the 
deeds  of  nations.  The  only  safe  rule,  there- 
fore, for  statesmen  who  fully  appreciate  the 
nature  of  their  responsibilities  is  the  rule  em- 
phasized by  Spinoza:  that  the  supreme  law  of 
the  State  is  the  security  of  the  State. 


CHAPTER  III 


"Rights" 

and 

interests 


"Declaration 
of  Rights" 


THE  RIGHTS  OF  STATES 

There  is  a  marked  tendency  with  most  men, 
when  their  interests  are  endangered,  to  protest 
loudly  against  the  invasion  of  their  "rights." 
If  they  are  uncertain  concerning  the  legal  ba- 
sis of  their  "rights,"  they  appeal  to  "natural 
rights"  and  to  the  "rights  of  humanity."  This 
is  also  true  of  nations.  We  have  heard  much 
of  late  of  the  "/rights"  of  neutrals.  In  the 
case  of  both  men  and  nations,  what  is  fre- 
quently at  stake  is  not  a  right,  but  an  interest. 

A  recent  interesting  example  of  this  tendency 
to  assert  a  "right"  in  the  abstract  is  the  action 
of  the  newly  formed  American  Institute  of  In- 
ternational Law,  composed  of  representatives  of 
the  nations  of  the  Western  Hemisphere,  in  is- 
suing to  the  world  a  heroic  "Declaration  of 
Rights,"  a  kind  of  international  Magna  Carta. 
We  here  find  asserted  in  phraseology  recalling 
the  seventeenth  and  eighteenth  century  school 
of  political  theorists,  the  "rights"  of  States  to 

56 


THE  RIGHTS  OF  STATES  57 

existence,  independence,  sovereignty,  and  equal- 
ity, in  accordance  with  "the  laws  of  nature  and 
of  nature's  God."  Mr.  Root,  ex-Secretary  of 
State — a  member  of  the  institute — has  felt  im- 
pelled to  come  forward  as  a  valiant  and  needed 
champion  of  this  extraordinary  Declaration. 

It  would  seem  as  if  no  argument  were  re-  Legal  rights 
quired  to  demonstrate  that  legal  rights  cannot 
be  based  on  abstractions,  on  assumptions,  on 
"inherent,"  "absolute,"  "primordial,"  "funda- 
mental" rights,  to  quote  the  terms  used  by 
many  writers  on  International  Law.  Rights, 
as  we  have  seen,  spring  from  the  legal  recog- 
nition of  definitely  determined  interests.  Any 
other  kind  of  alleged  right  belongs  in  the  sphere 
of  morals  and  has  no  place  in  a  science  of  law. 

International  Law,  as  I  have  tried  to  point  international 
out  in  the  opening  chapter,  has  been  badly  dis-  ^^ 
credited  of  late;    and  it  has  been  discredited  abstractions 
quite  as  much  by  its  friends  as  by  its  enemies. 
The  attempts  to  base  international  rights  on 
mere  abstractions,  on  vague  appeals  to  the  Law 
of  Nature  and  the  rights  of  mankind,  are  bound 
to  awaken  distrust  and  even  derision.    The  in- 
terests of  nations,  as  of  men,  cannot  be  regu- 
lated by  any  such  artificial  system  of  law. 


58  INTERNATIONAL  REALITIES 

Necessity  of  It  is  profoundly  discouraging  that  the  Great 
to  reality  *  War,  with  all  its  appalling  losses  and  its  les- 
sons, does  not  yet  seem  to  have  convinced  many 
earnest  thinkers  that  International  Law  has 
heretofore  rested  on  a  false  basis;  that  the 
interests  of  nations  have  not  been  accurately 
formulated  or  adequately  safeguarded.  A 
calamity  of  this  magnitude  surely  should  com- 
pel men  to  abandon  abstractions,  and  to  deal 
with  the  great  realities  of  international  exis- 
tence. Instead  of  vainly  trying  to  adjust  these 
realities  to  conform  with  theories  of  law,  it  is 
time  we  endeavored  honestly  to  readjust  the 
law  to  meet  the  actual  necessities  of  nations. 
That,  at  least,  is  the  task  we  have  here  set  our- 
selves. It  would  therefore  seem  necessary  to 
weigh  and  consider  these  "fundamental  pos- 
tulates" of  International  Law,  namely,  the 
"right"  of  a  State  to  existence,  independence, 
sovereignty,  and  equality. 

The  "right"  When  it  is  asserted  that  a  State  has  the 
"right"  to  exist,  it  can  hardly  mean  that  all 
existing  States  have  the  right:  Morocco,  Persia, 
Turkey,  for  example.  If  a  State  deteriorates  in 
its  domestic  life,  and  becomes  incapable  of 
maintaining  a  political  organization,  it  may  re- 


TEE  RIGHTS  OF  STATES  59 

quire  something  of  the  nature  of  a  protectorate 
or  an  international  receivership,  as  in  the  case 
of  Persia.  If  it  misbehaves  in  such  a  way  as 
to  become  a  menace  to  the  welfare  of  other  na- 
tions, it  will  deserve  either  restraint  of  its  free- 
dom or  actual  extinction  as  a  separate  nation. 
Society  does  not  guarantee  to  the  individual 
any  legal  or  moral  right  to  exist.  It  protects 
him  from  assassination  but  does  not  allow  him 
to  continue  to  exist  if  he  is  a  menace  to  the 
community  as  a  whole.  His  right  is  not  "ab- 
solute"; it  is  a  qualified  right.  And  so  it  must 
be  with  nations;  they  have  no  "absolute 
right"  of  existence. 

Nor  does  this  "right"  to  exist  imply  the  "status  quo" 
maintenance  of  a  sacred  status  quo.  Though 
great  respect  is  due  the  established  order  of 
things  to  avoid  uncertainty  and  unrest,  there 
is  no  possibility  of  perpetuating,  under  the 
name  of  law,  an  iniquitous  status  quo  created, 
after  the  manner  of  the  Congresses  of  Vienna 
and  Berlin,  in  flagrant  disregard  of  the  legiti- 
mate aspirations  of  whole  nations.  If  justice 
is  not  done  to  the  just  demands  of  nationalism, 
revolution  and  war  are  bound  to  establish  a 
new  status  quo. 


6o 


INTERNATIONAL  REALITIES 


The  right  to  exist,  therefore,  becomes  pri- 
marily the  recognition  of  the  tendency  of  men 
to  group  together  in  separate  national  com- 
munities in  accordance  with  their  different 
preferences  and  interests.  This  is  the  solid 
rock  of  International  Law.  Before  an  interest 
can  be  protected,  it  must  be  properly  defined; 
and  there  should  be  no  protection  of  unjust 
interests.  Before  International  Law,  there- 
fore, can  effectively  apply  between  definite  in- 
ternational persons,  it  must  make  sure  that 
these  entities,  these  national  interests  are 
normal,  logical,  and  worthy  of  protection.  We 
must  first  determine  the  basic  factors  before 
we  can  create  a  system  of  law.  We  must  first 
show  the  right  of  States  to  exist. 

In  what  sense,  then,  may  we  properly  speak 
of  the  legal  right  of  a  State  to  exist  ?  In  its 
essence  it  would  seem  to  flow  from  the  formal 
recognition  which  States  extend  to  each  other 
in  one  form  or  another.  When  States  are  con- 
fronted with  the  fact  of  the  existence  of  another 
State,  they  have  practically  the  choice  of  three 
alternatives.  They  may  do  as  Rome  often  did, 
seek  to  destroy  the  State;  they  may  decide  on 
non-intercourse,  a  practical  impossibility  under 
modern  conditions;  or,  realizing  the  inevitabil- 


THE  RIGHTS  OF  STATES  61 

ity  of  intercourse,  they  will  extend  to  the  new 
State  a  formal  recognition.  This  recognition 
constitutes,  then,  a  mutual  guarantee  between 
nations,  great  and  small,  of  their  legal  right  to 
a  separate  existence  in  order  to  realize  their  own 
aspirations  and  destinies. 

This   legal   right,    moreover,    applies   to   all  international 
States  without  discrimination,  once  they  are  u^ersai 
definitely  recognized.    International  Law,  there- 
fore, is  not  restricted,  as  some  writers  would 
hold,  to  the  so-called  civilized  States.    Though 
European  in  origin,  the  law  of  nations  is  uni- 
versal in  application,  and  in  its  evolution  as  a 
science. 

The  "right"  of  independence,  theoretically,  The  "right" 
is  a  necessary  corollary  of  the  "right"  of  a  independence 
State  to  exist.  It  was  particularly  of  value  in 
the  sixteenth  and  seventeenth  centuries  when 
the  smaller  nations  were  struggling  to  emerge 
from  the  control  of  Kings  and  Emperors.  The 
separate  existence  of  States  required  that  there 
should  be  no  intermeddling,  no  intervention  in 
each  other's  affairs.  It  was  logically  necessary 
to  postulate  a  "right"  of  complete  indepen- 
dence. 


62  INTERNATIONAL  REALITIES 

Nations  not  As  a  matter  of  fact,  the  conception  of  States 
independent  completely  independent  of  each  other,  living, 
of  each  other  as  it  were,  in  a  fictitious  state  of  nature,  is  in 
antagonism  with  the  conception  of  a  commu- 
nity of  nations  accepting  a  common  law.  Once 
States  have  recognized  each  other's  existence; 
have  adjusted  themselves  to  the  necessity  of 
intercourse;  and  have  acknowledged  mutual 
rights  and  obligations,  they  have  ceased  to  be 
truly  independent;  they  have  admitted  their 
interdependence.  Take  for  example  the  ques- 
tion of  the  rights  of  aliens.  It  is  evident  that 
nations  are  not  free  independently  to  do  as 
they  please  with  the  stranger  who  may  be  trav- 
elling or  sojourning  within  their  borders. 

independence  Furthermore,  it  is  not  necessary  that  a  State 
recognition  should  be  absolutely  independent  to  entitle  it 
to  international  recognition.  Cuba,  for  in- 
stance, though  seriously  restricted  both  in  its 
internal  and  external  freedom  of  action  by  its 
treaty  engagements  with  the  United  States,  is 
nevertheless  a  nation  having  all  the  essentials 
of  an  international  personality.  Panama,  with 
much  less  freedom,  owing  to  the  paramount 
interests  of  the  United  States,  is  also  a  sepa- 
rate nation.  Switzerland,  though  denied  the 
right  of  aggressive  action  as  a  neutralized  State 


THE  RIGHTS  OF  STATES  63 

protected  by  the  Powers,  is  none  the  less  a 
nation. 

It  is  of  particular  interest  to  note  that  Can-  status  of 
ada  and  Australia,  though  integral  parts  of  the  Australia™ 
British  Empire,  are  in  process  of  assuming  an 
international  status.  Sir  Wilfrid  Laurier  has 
been  quoted  to  the  effect  that  Canada  pos- 
sesses the  essential  characteristics  of  a  nation. 
It  has  carried  on  diplomatic  negotiations  with 
the  United  States  and  Japan;  and  has  been 
conceded  the  right  to  become  a  party  to  cer- 
tain international  agreements  relating  to  the 
Postal  Union  and  Wireless  Telegraphy,  etc. 
There  is  nothing  inherently  incompatible  in  ad- 
mitting the  possibility  of  such  States  as  Can- 
ada, Australia,  and  South  Africa  becoming,  like 
Bavaria,  international  States,  though  still  re- 
taining a  dependent  relation  to  their  respective 
Empires. 

For  these  reasons,  therefore,  it  is  erroneous,  "Right"  of 

i        i      .          i  i  •  t         f          independence 

both   in  theory   and   practice,   to   speak  or    a  an 
"right"  of  independence.    It  is  without  justifi-  assumption 
cation,   and  is   entirely  misleading.     It  is   an 
abstract  assumption  having  little  relation  to 
reality. 


64  INTERNATIONAL  REALITIES 

"Right"  of          In    its    simplest    terms,    the    claim    to    the 
the^daim6^6    "right"  of  independence  is  merely  the  claim  of 
freedom          a  nation  to  3.  certain  degree  of  freedom.    "The 
international   State" — to  quote  the  words   of 
Lorimer — "whether  great  or  small,  must  thus 
be  a  separate  State.    As  the  claim  to  recogni- 
tion is  a  logical  abandonment  of  independence, 
it  is  a  logical  profession  of  separate  political 
life."1 

The  "right"         The  "right"  of  sovereignty,  like  the  "right" 

of  sovereignty       r     .     .  .  ,  •      n  1*1 

or  independence,  is  theoretically  a  logical 
corollary  of  the  "right"  to  exist.  If  a  State  is 
to  be  allowed  to  enjoy  and  maintain  its  own 
separate  existence;  if,  as  a  responsible,  inter- 
national personality,  it  is  to  possess  a  "recipro- 
cating will,"  it  must  possess  freedom  of  will;  it 
cannot  be  subject  to  the  sovereign  will  of  an- 
other. 

Origin  of  term  This  concept  also  had  a  special  significance 
in  the  sixteenth  and  seventeenth  centuries  when 
the  smaller  States  were  endeavoring  to  assert 
their  own  personalities,  and  were  called  on  to 
acknowledge  allegiance  to  sovereigns  of  both 
Church  and  State.  It  was  desirable  to  stress 
the  idea  of  sovereignty;  to  emphasize  the  com- 

1  Institutes  of  the  Law  of  Nations,  I,  p.  140. 


THE  RIGHTS  OF  STATES  65 

plete  freedom  of  nations  to  work  out  their  own 
problems  as  "sovereign,  political  units." 


In  this   sense,   then,   sovereignty   and   inde-  Sovereignty 

and 
independence 


pendence  are  virtually  synonymous  terms,  when  a 


employed  by  writers  on  International  Law  in 
respect  to  the  external  freedom  of  the  State. 
"External  sovereignty,"  in  the  words  of 
Wheaton,  is  "the  independence  of  one  political 
society  in  respect  to  all  other  political  soci- 
eties."1 

If  we  attempt  to  apply  this  idea  of  sover-  idea  of 
eignty  to  concrete  instances  we  find  not  only  abluniln*7 
that  it  does  not  work,  but  that  it  results  in  a  application 
reductio  ad  absurdum.    In  the  case  of  Cuba,  or 
of  Panama,   which    do   not   possess   complete 
freedom  of  action,  there  is  evidently  an  im- 
pairment of  sovereignty.     It  is  necessary  to 
admit  the  existence  of  a  jw^r-sovereign !    To 
speak  of  a   "Suzerainty,"    as   in  the  case  of 
Egypt,  is  to  employ  a  euphonism.    To  speak  of 
any  of  these  States  as  "Half-Sovereign"  is  to 
render  the  theory  of  sovereignty  ridiculous.    To 
meet  such  dilemmas,  namely,  the  existence  of 
certain    international    personalities    having    a 
qualified   status   as   nations,   defenders   of  the 

1  Elements  of  International  Law,  edited  by  Dana,  8th  ed.,  p.  32. 


66  INTERNATIONAL  REALITIES 

"right"  of  sovereignty  are  driven  to  invoke  the 
fiction  that  such  States  are  still  sovereign  by 
reason  of  the  fact  that  they  have  exercised 
their  sovereign  will  in  consenting  to  restric- 
tions on  their  sovereignty!  "What  the  King 
consents  to,  he  commands." 

Theory  of  It  is  difficult,  therefore,  to  see  any  real  value 

sovereignty         .  ,  ,  .  r  .  ^  ... 

of  no  real        m  a  modern  doctrine  of  sovereignty.     Even  if 
value  applied  to  the  internal  freedom  of  the  State, 

to  its  "exclusive,  sovereign  jurisdiction"  within 
its  own  borders,  the  theory  breaks  down.  As 
we  have  already  noted,  no  nation,  for  instance, 
is  absolutely  free  to  do  as  it  pleases  with  the 
stranger  within  its  gates.  A  large  part  of 
diplomatic  negotiations  is  concerned  with  the 
protection  of  aliens  from  arbitrary  and  unjust 
claims  to  "exclusive,  sovereign  jurisdiction." 

For  the  practical  purposes  of  International 
Law,  therefore,  it  would  seem  eminently  desir- 
able to  discard  completely  the  idea  of  the 
"right"  of  sovereignty.  It  is  particularly  de- 
sirable, if  one  looks  forward  to  the  time  when 
portions  of  Empire,  like  Canada  and  Bavaria, 
having  no  pretensions  to  sovereignty,  may  as- 
sume a  more  definite  international  status;  when 
the  nations  of  the  earth  may  be  willing  to  merge 
their  interests  more  completely,  and  the  claims 


THE  RIGHTS  OF  STATES  67 

of  petty  "sovereign"  States  would  stand  in  the 
way  of  international  harmony  and  order. 

No  political  dogma  has  had  greater  accep-  The  "right' 
tance  or  been  in  more  flagrant  opposition  with  of  equality 
the  facts  than  the  assertion  of  the  Declaration 
of  Independence  that,   "All  men  are  created 
equal."     As  an  ideal,  a  goal  of  perfection,  it 
is  worthy  of  all  respect.     As  a  statement  of 
fact,  or  as  a  sacred  guarantee,  it  is  of  doubtful 
value. 

The  more  one  studies  actual  conditions  in  Human 
human  society,  the  more  he  is  aware  of  the  me^uallties 
existence  of  distinct  inequalities  and  serious 
handicaps  among  men  from  the  moment  of 
birth.  He  sees  that  even  "before  the  law," 
position,  wealth,  intellect,  and  personality  are 
all  factors  likely  to  affect  the  administration 
of  justice.  In  fact,  it  would  seem  to  be  the  first 
duty  of  the  court  to  clearly  admit  such  inequal- 
ities in  order  that  a  real  equality  may  be  re- 
stored and  justice  accorded.  Moreover,  when 
we  speak  of  "the  equality  of  men  before  the 
law,"  we  must  bear  in  mind  the  fact  that,  if  any 
men  as  individuals  or  as  a  class  are  denied  an 
equal  participation  in  the  making  of  the  law, 
they  cannot  be  said  to  be  equals  when  it  comes 


68  INTERNATIONAL  REALITIES 

to  the  application  of  the  law.  All  such  dis- 
abilities, whether  inherited,  accidental,  phys- 
ical, intellectual,  or  political,  testify  to  the  fact 
all  men  are  not  created  equal,  nor  can  they  even 
be  guaranteed  a  perfect  equality.  It  is  obvious 
that  the  much-vaunted  "equality  of  men" 
vanishes  in  the  light  of  cold  reality.  It  is  hardly 
anything  more  than  a  pious  moralization,  an 
abstract  assumption,  a  remote  ideal. 

Equality  of  So   it   has   been   with   the   doctrine   of  the 

equality  of  States,  which  has  been  curiously 
assimilated  to  the  doctrine  of  the  equality  of 
man.  It  has  been  loudly  and  frequently  pro- 
claimed as  a  self-evident  truth.  A  familiar 
statement  of  this  sort  was  made  by  Chief 
Justice  Marshall  that  "No  principle  of  general 
law  is  more  universally  acknowledged  than  the 
perfect  equality  of  nations.  Russia  and  Geneva 
have  equal  rights."1  And  now  we  have  the 
brave  assertion  of  the  American  Institute  of 
International  Law:  "Every  nation  is  in  law 
and  before  law  the  equal  of  every  other  State 
composing  the  society  of  nations,  and  all 
States  have  the  right  to  claim  and,  according 
to  the  Declaration  of  Independence  of  the 
United  States,  to  assume,  among  the  Powers  of 
1  The  Antelope,  10  Wheaton,  66,  122. 


THE  RIGHTS  OF  STATES  69 

the  earth,  the  separate  and  equal  station  to 
which  the  laws  of  nature  and  of  nature's  God 
entitle  them  !" 

The  equality  of  States  is  of  course  as  much  Equality  a 
a  logical  deduction  from  the  theory  of  the  d°e^uction 
"right"  to  exist,  as  the  "right"  of  indepen- 
dence and  sovereignty.  At  a  time  when  States 
were  struggling  to  emerge  and  to  assert  their 
separate  existence;  when  their  claims  and  their 
diplomatic  representatives  were  treated  with 
contempt,  it  was  expedient  to  insist  on  the 
equality  of  nations.  The  admission  of  inequal- 
ity, like  the  admission  of  dependence  and  al- 
legiance, was  to  endanger  the  separate,  free 
existence  of  a  State  claiming  a  distinct  inter- 
national personality. 

The  original  utility  of  the  concept  of  equality  Are  states 
is  apparent.     What,  however,  is  its  value  and  trulyequa 
truth  in  relation  to  the  facts  and  conditions  of 
to-day?     Are  States  truly  equal  "in  law  and 
before  the  law"?     Have  they  the  "right"  to 
"claim  and  to  assume  among  the  Powers  of  the 
earth,  the  separate  and  equal  station  to  which 
the  laws  of  nature  and  of  nature's  God  entitle 
them"?      Have    Liberia    and    Great    Britain, 
Haiti  and  the  United  States  an  "equal  station"  ? 


INTERNATIONAL  REALITIES 


"Right  "of 
equality 
and  "law  of 
nature" 


Inequalities 
of  nations 


Relative 
influence  of 
nations 


As  we  have  before  had  occasion  to  observe, 
it  is  of  slight  value  to  invoke  the  "Law  of  Na- 
ture and  of  Nature's  God"  as  the  basis  of  the 
legal  organization  of  society.  Appeals  of  this 
character  to  a  vague  absolute  law,  to  Divine 
ordinances,  are  in  themselves  a  confession  of 
weakness  of  argument,  an  inability  to  appeal  to 
man's  reason,  an  open  evasion,  in  fact,  of  the 
realities  which  lie  open  to  every  man's  com- 
prehension. Men  do  not  accept  with  blind 
allegiance  any  law  imposed  by  an  absolute 
sovereign.  They  are  not  inert  atoms;  they 
make  their  own  laws. 

When  we  come  to  examine  dispassionately 
these  realities,  we  see  that  nations  are  unequal 
with  respect  to  population,  natural  resources, 
geographical  location,  wealth,  etc.,  etc.  As 
peoples,  they  are  unequal  in  physical  stamina, 
moral  worth,  and  general  efficiency.  We  are 
bound  to  recognize  the 
Great  Powers. 


"primacy"  of  certain 


In  great  international  conferences,  such  as 
at  The  Hague  or  the  Naval  Conference  of  1909 
at  London,  it  is  evident  that  the  opinions  of 
Liberia  and  Great  Britain  cannot  possibly  be  of 
equal  weight  when  it  comes  to  the  enactment 


THE  RIGHTS  OF  STATES  71 

of  positive  legislation.  In  fact,  the  Naval 
Conference,  consisting  as  it  did  only  of  repre- 
sentatives of  the  Great  Powers,  was  an  open 
denial  of  the  claim  of  equality. 

Not  only  are  the  Great  Powers  unable  to  Unequal  rep- 
admit  a  "perfect  equality  of  nations"  in  the 
making  of  International  Law;   they  are  unable  courts 
to  admit  an  equality  of  representation  on  the 
International  Prize  Court — already  agreed  on 
but    never    established — or   on    any   proposed 
Court  of  Arbitral  Justice. 

Nations  such  as  Great  Britain,  Germany,  Equality  and 
and  the  United  States,  cannot  safely  intrust 
their  vast  interests  to  the  decisions  of  judicial 
representatives  of  the  great  majority  of  smaller 
States,  or  to  the  free  vote  and  disposition  of 
an  unrestricted  democracy  of  nations.  The 
pretensions  to  a  perfect  equality  constitute, 
in  fact,  the  greatest  obstacle  in  the  way  of  any 
kind  of  international  organization,  even  of  the 
limited  character  of  the  Conferences  at  The 
Hague.  If  it  should  be  found  possible  to  or- 
ganize the  community  of  nations  so  as  to  insure 
greater  security  and  justice  for  the  weak  as 
well  as  the  strong  nations,  then  the  smaller 
States,  in  return  for  such  great  benefits,  would 


72  INTERNATIONAL  REALITIES 

do  well  to  abandon  their  pretensions  to  equal- 
ity. The  frank  admission  of  the  palpable  fact 
of  their  inequalities  would  do  much  to  facilitate 
the  task  of  international  polity. 

Theory  of  From  every  point  of  view,  therefore,  whether 

unsound  °^  tneory>  °f  practice,  or  of  hopes  for  the  future, 
the  theory  of  the  equality  of  States  is  unsound. 
Except  as  the  claim  to  what  Bonfils  has  well 
termed  "respect  for  political  personality" — a 
sort  of  plea  for  international  good  manners — 
it  is  of  doubtful  value.  The  law  of  nations  de- 
mands something  more  solid  as  a  foundation. 

Summary  By  way  of  summary,  then,  these  "inherent," 

"absolute,"  "fundamental  rights"  of  States 
would  seem,  in  last  analysis,  to  be  reduced  to 
the  following  "inherent"  values. 

Right  to  exist  The  right  to  exist  springs  from  the  mutual 
recognition  which  States  accord  to  each  other 
as  a  guarantee  of  their  separate  freedom. 
This  right  is  not  absolute:  it  is  qualified  by 
the  behavior  of  a  State  and  by  its  ability  to 
properly  maintain  its  separate  existence. 

"Right"  of  The  "right"  of  independence  does  not  mean 
that  States  are  truly  independent  of  each  other. 
It  merely  means  the  right  to  a  separate  exis- 


THE  RIGHTS  OF  STATES  73 

tence,  the  possession  of  a  distinct  international 
personality. 

The  "right"  of  sovereignty  with  reference  to  "Right"  of 
both  the  external  and  the  internal  freedom  of  ******* 
will  of  a  State  has  no  real  significance  apart 
from  the  idea  of  independence. 

The  "right"  of  equality  is  evidently  nothing  "Right"  of 
more  than  the  claim  of  nations  to  an  equal 
right  of  recognition,  and  to  the  respect  due 
them  as  separate  political  personalities.  It 
belongs  rather  in  the  realm  of  international 
etiquette  than  International  Law.  As  an  al- 
leged principle  of  law  it  is  essentially  unsound 
and  dangerous,  a  step  backward,  an  obstacle 
in  the  way  of  international  order  and  organiza- 
tion. Liberia  and  Haiti  might  well  be  cau- 
tioned not  to  stress  too  urgently  their  claims  to 
what  the  American  Institute  of  International 
Law  has  seen  fit  to  characterize  as  "the  sep- 
arate and  equal  station  to  which  the  laws  of 
Nature  and  of  Nature's  God  entitle  them." 

In  conclusion,  therefore,  it  must  be  reiterated  Rights  spring 
that  rights  spring  from  the  legal  recognition  of  neoi^am 
definite  interests.     The  Rights  of  States  can-  of  interests 
not  be  based  on  assumptions,  on  abstractions, 
on  "fundamental  postulates."    No  true  system 


74  INTERNATIONAL  REALITIES 

of  law  can  be  erected  on  so  false  a  basis.  It 
must  be  based  on  solid  realities,  on  genuine 
interests  definitely  recognized  and  legally  pro- 
tected. 

international        Whatever   may   have   been   the   services   of 
realities  political    theorists    in    behalf    of   the    general 

rights  of  man,  it  would  seem  clear  that  Inter- 
national Law  cannot  now  fall  back  on  mere 
theories.  Its  most  ardent  champions  have 
rendered  it  poor  service  in  recent  times  by  ap- 
peals to  natural  law  and  "absolute  rights/'  It 
will  never  be  entitled  to  full  respect  as  a  com- 
prehensive, rational  system  of  law  until  we 
have  the  courage  to  undertake  anew  to  lay  its 
foundations  on  the  firm  basis  of  international 
realities. 


CHAPTER  IV 

THE  LIMITATIONS  OF  ARBITRATION 
We  have  heard  much  in  regard  to  the  limi-  claims  of 

extreme 
Pacifists 


tation  of  armaments,  but  very  little  concerning  * 


the  limitations  of  Arbitration.  There  have 
been  hardly  any  limitations  to  the  claims  of 
extreme  Pacifists  concerning  the  sovereign 
merits  of  Arbitration  as  a  substitute  for  arma- 
ments. Many  hold  with  Norman  Angell  that 
wars  do  not  pay — a  most  materialistic  point  of 
view  for  idealists  to  hold;  that  "there  never 
was  a  good  war  or  an  honorable  peace";  and 
that  there  is  no  reason  why  a  nation,  any  more 
than  an  individual,  should  refuse  to  submit 
vital  interests  and  questions  of  national  honor 
to  Arbitration. 

In  their  unbounded  confidence  in  the  efficacy  ignorance  of 
of  Arbitration  as  a  panacea  for  international 
ills,  however,  the  peace  extremists  have  proved 
too  much.  In  showing  that  Arbitration  is  a 
very  ancient  institution  which  has  frequently 
been  used  by  many  nations,  they  have  uncon- 
sciously drawn  attention  to  the  fact  that  it 

75 


76  INTERNATIONAL  REALITIES 

must  have  decided  limitations  if  nations  in  so 
many  instances  have  preferred  the  arbitrament 
of  the  sword  for  the  settlement  of  their  dis- 
putes. The  question  naturally  arises  why  this 
should  be  so.  It  is  not  at  all  satisfactorily 
answered  by  the  general  assertion  that  most 
wars  have  occurred  because  of  the  absence  of 
an  organized  public  opinion  opposed  to  war. 
Apart  from  the  injustice  of  denouncing  states- 
men burdened  with  the  painful  responsibility 
of  accepting  war  in  the  maintenance  or  defense 
of  national  rights,  this  point  of  view  reveals 
an  inaccurate  analysis  of  the  causes  of  war. 
Failing  to  estimate  with  precision  the  exact 
causes  of  war,  it  is  of  course  natural  that  these 
extremists  should  fail  to  comprehend  the  real 
functions  and  the  scope  of  Arbitration  as  an 
alternative  of  war. 

Causes  of  war  A  proper  understanding  of  the  causes  of  war 
is  not  to  be  had  through  abstract  theorization, 
but  through  a  careful  analysis  of  concrete  ex- 
amples. We  need  scientific  laboratory  inves- 
tigations, not  philosophical  generalizations.  If 
there  are  international  ills  to  be  eradicated, 
they  should  be  correctly  diagnosed  and  scien- 
tifically treated.  They  cannot  be  conjured 


THE  LIMITATIONS  OF  ARBITRATION    77 

away  by  sentimental  appeals,  or  by  denouncing 
the  horrors  of  war.  And  yet,  during  the  past 
twenty  years  of  peace  agitation  and  arbitration 
propaganda,  there  has  been  manifested  an  ex- 
traordinary disinclination  to  learn  even  the 
lessons  so  strikingly  taught  in  the  six  wars 
which  have  occurred  since  the  Czar  in  1897 
issued  his  famous  appeal  for  disarmament. 
The  horrors  of  modern  warfare  are  so  unutter- 
able that  many  sensitive  persons  are  apparently 
quite  incapable  of  finding  a  rational  explanation 
of  the  causes  of  war.  To  such  persons  war  is 
the  abandonment  of  reason;  it  is  the  reversion 
of  man  to  primitive  savagery.  They  cannot  see 
that,  just  as  with  bodily  ailments,  there  may  be 
specific  causes  of  international  ills;  that,  as 
in  the  community,  where  gross  injustice  pre- 
vails, there  discontent  and  violence  are  likely 
to  occur.  When  every  other  expedient  to  keep 
order  and  administer  justice  fails,  there  force  of 
necessity  becomes  the  ultima  ratio.  By  those, 
however,  who,  like  the  physician,  are  able  to  ig- 
nore the  horrors  of  war  and  disease,  the  brute, 
crude  causes  of  war  may  readily  be  compre- 
hended. A  brief  survey,  therefore,  of  these 
recent  Twentieth  Century  wars  will  be  most 
suggestive. 


78 


INTERNATIONAL  REALITIES 


Spanish- 
American 
War 


South 
African.  War 


The  blowing  up  of  the  United  States  Battle- 
ship Maine  in  the  harbor  of  Havana  may  have 
been  the  occasion  for  the  war  with  Spain  in 
1898;  it  certainly  was  not  the  fundamental 
cause.  Whatever  the  occasion  and  the  causes 
of  this  war,  one  thing  is  clear:  it  put  an  end 
to  decades  of  suffering  and  intolerable  wrong, 
and  resulted  in  what  has  been  well  termed 
"the  abatement  of  an  international  nuisance." 
The  questions  involved  were  of  such  a  nature 
that  Spain  could  not  possibly  agree  to  submit 
them  to  Arbitration.  They  obviously  could 
not  be  settled  through  Diplomacy.  The  as- 
sertion that  Diplomacy  might  have  found  a 
peaceful  solution  is  after  all  a  mere  conjecture; 
and  conjecture  of  this  kind,  in  the  face  of  the 
failure  of  Diplomacy,  would  seem  peculiarly 
futile.  Whatever  may  have  been  the  conscious 
motives  of  the  American  people  in  taking  up 
the  sword  against  Spain,  in  responding  to  the 
call  of  apparent  duty,  the  results  in  Cuba, 
Puerto  Rico,  and  the  Philippines  would  seem 
to  offer  their  own  eloquent  justification. 

The  war  in  South  Africa,  with  all  its  unpleas- 
ant antecedents — the  Jameson  Raid  and  the 
Chamberlain-Kruger  negotiations  —  seemingly 
performed  the  greatest  beneficial  service  for 


THE  LIMITATIONS  OF  ARBITRATION    79 

both  the  Dutch  and  the  British.  Whatever 
may  have  been  the  inordinate  pretensions  of 
the  British  settlers,  this  war  settled  once  for 
all  that  those  who  participate  in  the  upbuilding 
of  a  State  are  to  be  treated  as  equals,  and  not 
as  menials.  There  was  nothing  to  arbitrate. 
Legally  the  Boers  were  essentially  within  their 
rights  to  do  as  they  pleased  with  the  land 
they  had  conquered  and  the  State  they  had 
founded.  This  bloody  war,  however,  decided 
otherwise;  and  the  results  to-day  in  South 
Africa,  where  a  united  people  under  the  leader- 
ship of  Botha,  the  Boer  General,  are  fighting 
loyally  for  the  British  Empire,  offer  the  most 
effective  argument  in  defense  of  the  great  con- 
flict. The  assertion  of  Norman  Angell  and 
others  that  the  same  results  might  have  been 
attained  by  peaceful  means  in  the  process  of 
time  would  seem  in  the  light  of  the  actual  sit- 
uation hardly  worthy  of  serious  consideration. 

The  Russo-Japanese  War,  which  the  clever- 
est  diplomacy  could  not  avert,  directed  atten- 
tion  to  the  consequences  bound  to  ensue  when 
the  expansive  economic  forces  of  two  great 
nations  come  into  collision  and  ignore  the  just 
rights  of  other  nations.  There  could  be  no 


8o  INTERNATIONAL  REALITIES 

doubt  concerning  the  sovereign  rights  of  both 
Korea  and  China.  Neither  Japan  nor  Russia 
had  legal  rights  in  Korea  or  Manchuria.  And 
yet  International  Law  and  Arbitration  are  of 
no  avail  in  such  a  situation.  An  arbitral  tri- 
bunal would  have  been  absolutely  constrained 
to  deny  to  Russia  and  Japan  any  rights  su- 
perior to  those  of  China  and  Korea.  Holding 
the  views  they  did,  neither  of  the  great  con- 
tending nations  could  have  appealed  with 
reason  to  Arbitration.  Convinced  as  they 
were  that  vital  national  interests  were  at 
stake,  they  could  in  last  resort  only  appeal  to 
the  arbitrament  of  the  sword.  As  we  contem- 
plate the  mysterious  operation  of  great  unseen 
forces  in  the  affairs  of  nations,  have  we  any 
right  to  assert  that  this  dreadful  war  was 
brought  on  by  the  evil  designs  of  irresponsible 
statesmen  ?  Conscious  at  least  of  the  limita- 
tions of  finite  wisdom,  one  should  not  lightly 
support  so  hideous  an  accusation.  It  would 
certainly  seem  clear  that  the  Russo-Japanese 
War  did  settle  something.  A  perfect  under- 
standing now  exists  between  the  two  nations, 
and  the  former  antagonists  are  now  brothers  at 
arms  seeking  together  the  settlement  of  another 
inscrutable  problem. 


THE  LIMITATIONS  OF  ARBITRATION    81 

It  is  extremely  difficult,  if  not  impossible,  itaio- 
to  attach  much  weight  to  the  ostensible  reasons 
alleged  by  Italy  for  waging  war  against  Turkey 
in  1912.  The  true  cause  of  the  war  seemed  to 
lie  in  the  intense  conviction  of  Italian  states- 
men that  territory  in  Africa,  not  essential  to 
Turkish  national  development,  was  most  es- 
sential to  the  development  of  Italy.  Arbitra- 
tion in  such  an  absurd  case  would  unquestion- 
ably have  gone  against  Italy,  as  it  would  in  the 
instance  of  Russia  and  Japan.  It  is  true,  of 
course,  that  the  people  of  Tripoli  as  a  conquered 
race  were  not  benefiting  by  Ottoman  rule;  and 
that  Italian  rule  promised  a  much  higher  order 
of  economic  and  social  development.  No  matter 
how  much  one  may  denounce  this  war  of  ag- 
grandizement, it  would  seem  as  if  we  were 
again  in  the  presence  of  strange,  imponderable 
forces  which  vitally  concern  the  evolution  of 
nations.  Here  is  presented  the  whole  great 
problem  of  colonial  empire,  the  question  of  the 
conflict  between  the  rights,  the  needs,  and  the 
obligations  of  higher  and  lower  levels  of  civili- 
zation. Have  ignorance,  inefficiency,  defective 
notions  of  justice,  low  standards  of  morals  and 
behavior,  superior  or  even  equal  rights  when 
in  conflict  with  high  standards  of  education, 


82  INTERNATIONAL  REALITIES 

efficiency,  justice,  morality,  and  general  con- 
duct ?  One  should  try  to  answer  questions  of 
this  character  before  passing  final  judgment  on 
Italy's  course  in  its  war  of  aggression  against 
Turkey  in  1912. 

Balkan  Wars  Most  typical  and  illustrative  of  the  funda- 
mental causes  of  war  were  the  Balkan  Wars  of 
1912  and  1913.  The  war  against  Turkey  was 
undertaken  by  Bulgaria,  Serbia,  Greece,  and 
Montenegro  in  defense  of.  the  right  of  men  to 
group  together  in  accordance  with  their  ethnic 
sympathies,  their  economic  needs  and  inter- 
ests. This  principle,  so  cynically  flouted  time 
and  again  by  the  European  Powers,  in  pro- 
fessed adherence  to  the  doctrine  of  the  Balance 
of  Power,  had  been  most  flagrantly  violated  at 
the  Congress  of  Berlin,  which  deliberately 
aimed  to  prevent  the  realization  of  the  nation- 
alistic aspirations  of  the  peoples  of  the  Balkans. 
Too  much  blame  has  been  placed  on  the  Turks. 
In  common  with  other  nations,  they  of  course 
have  their  heavy  burden  of  responsibility. 
Their  follies  and  their  crimes  cannot  be  ex- 
tenuated. Any  other  nation,  however,  in  the 
place  of  Turkey  would  have  found  it  supremely 
difficult  to  thwart  the  natural  ambitions  of  the 
different  races  in  Turkey  in  Europe  to  be  re- 


THE  LIMITATIONS  OF  ARBITRATION    83 

united  with  their  own  kinsfolk.  The  Balkan 
War  of  1912,  therefore,  in  the  face  of  the  sar- 
donic diplomacy  of  the  European  Powers,  and 
the  obvious  impotency  of  Arbitration  to  deal 
with  such  a  chaotic  situation,  was  plainly  in- 
evitable; it  was  in  fact  too  long  delayed. 

This  war,  with  its  sweeping  conquests,  seemed  Treaty  of 
in  a  fair  way  toward  reaching  an  effective 
solution  of  the  great  ethnic  problems  involved, 
when  inordinate  cupidity  on  the  part  of  the 
Balkan  States  themselves,  and  malicious  diplo- 
matic intrigues  from  without,  precipitated  the 
lamentable  conflict  between  the  victorious 
allies.  The  entirely  unforeseen  adjustment 
that  followed  in  the  Treaty  of  Bucharest,  in 
failing  to  respect  this  basic  principle  of  ethnic 
and  national  rights,  sowed  the  seeds  of  future 
dissensions  and  conflicts.  Bulgaria,  deprived 
of  extensive  areas  populated  largely  by  people 
of  Bulgarian  stock  and  sympathies,  was  im- 
pelled in  1915  to  throw  in  its  lot  with  the  Teu- 
tonic Powers  in  the  hope  of  winning  back  this 
territory.  An  autonomous  Albania  was  created 
by  European  mandate,  in  professed  respect  for 
the  rights  of  nationality,  of  such  restricted  size, 
resources,  and  population  as  to  be  incapable 
of  an  independent  normal  existence.  Monte- 


84  INTERNATIONAL  REALITIES 

negro,  possessing  a  barren  district  less  than  a 
third  of  the  area  of  Vermont,  with  a  popula- 
tion of  less  than  300,000,  which  was  originally 
placed  in  the  grip  of  Austria,  through  the  op- 
position of  that  same  Power,  was  denied  the 
possession  of  territory  absolutely  essential  to 
its  economic  and  social  development.  Serbia, 
long  in  danger  of  strangulation  by  Austria, 
hoped  by  the  Balkan  War  not  only  to  be  re- 
united with  those  Serbs  under  Turkish  rule, 
but  also  to  find  at  last  a  way  to  the  open  sea. 
The  fierce  opposition  of  Austria,  abetted  by 
other  Powers,  succeeded  in  thwarting  this 
most  legitimate  ambition,  at  least  so  far  as  the 
Adriatic  was  concerned.  It  is  possible  that  as  a 
result  of  the  Great  War  of  1914,  Serbia  may  be 
able  to  free  itself  from  the  clutches  of  Austria 
and  find  some  sort  of  access  to  the  sea.  Cer- 
tainly as  regards  the  future  of  the  whole  Serb 
race,  which  was  originally  broken  into  fragments 
by  European  consent,  it  is  not  to  be  expected 
that  the  Serbs  will  ever  abandon  the  hope  of 
being  brought  together  in  one  household. 

The  Great  One  may  well  hesitate  at  this  time  to  attempt 

any  analysis  of  the  causes  of  the  great  struggle 
now  going  on  in  Europe,  Asia,  and  Africa.  The 
complexity  and  the  magnitude  of  the  various 


THE  LIMITATIONS  OF  ARBITRATION    85 

factors  involved  in  the  diplomacy  preceding 
the  outbreak  of  the  war  in  August,  1914,  afford 
ample  opportunity  for  speculation  and  dis- 
cussion. Two  main  truths,  however,  would 
seem  to  emerge  through  the  diplomatic  mist 
and  the  smoke  of  battle.  First  of  all,  it  should  Arbitration 
be  apparent  that,  whatever  the  deep-seated  appucaijie 
causes  of  the  war  may  have  been,  they  were 
not  of  a  character  suitable  for  Arbitration.  To 
touch  merely  on  one  phase  of  the  situation, 
Austria  did  not  fail  to  make  it  perfectly  clear 
that  it  could  never  submit  to  Arbitration  its 
grievances  against  Serbia.  Rightly  or  wrongly, 
Austria  was  evidently  convinced  that  it  must 
take  its  own  measures  of  redress  and  protection 
for  the  welfare  of  the  Dual  Monarchy.  Ar- 
bitration in  this  particular  instance,  as  well  as 
in  the  general  broad  issues  at  stake  between 
the  European  Powers,  was  entirely  out  of 
question. 

The  second  great  truth  revealed  by  the  Great  Divergence  of 
War  is  that  there  exists  between  the  nations  of  ^^ 
Europe  a  profound  divergence  of  views  con- 
cerning   international    rights    and    obligations 
both  in  time  of  peace  and  war.    Nothing  truer 
or  more  discouraging  has  been  remarked  in  re- 
gard  to   this   conflict   than   the   statement   of 


86  INTERNATIONAL  REALITIES 

Maximilian  Harden,  editor  of  Zukunft,  to  the 
effect  that  the  neutral  nations  were  generally 
against  Germany,  not  because  they  have  not 
been  told  the  truth,  but  because  they  do  not 
think  in  the  same  way  as  Germans  think.  What- 
ever the  merits  of  Germany's  contentions  may 
be,  we  are  face  to  face  with  this  tremendously 
significant  fact:  the  nations  of  the  world  are 
still  very  far  from  possessing  that  common 
conception  of  rights  and  obligations  which  is 
absolutely  essential  for  the  building  up  of  In- 
ternational Law  and  the  settlement  of  inter- 
national disputes  by  Arbitration,  or  courts  of 
justice. 

Scientific  A  dispassionate  study  of  the  wars  that  have 

occurred  since  1898  should  at  least  have  the 
effect  of  convincing  one  that  the  causes  of 
modern  wars  are  not  trivial,  and  that  they 
must  be  explained  otherwise  than  by  charging 
a  lack  of  intelligence  or  of  decent  sentiments 
on  the  part  of  responsible  statesmen  and  public 
opinion  in  general.  The  ills  of  the  body  politic 
must  be  diagnosed  and  treated  scientifically, 
very  much  as  the  diseases  of  the  human  body. 
Mental  healing  and  suggestion  may  be  of 
value,  but  in  the  treatment  of  international 
ailments,  it  is  of  slight  avail  where  nations  hold 


THE  LIMITATIONS  OF  ARBITRATION    87 

fundamentally  antagonistic  views,  and  differ  in 
mentality.  Essentially  similar  methods  must 
be  employed  in  treating  international  disorders 
as  in  treating  civic  disorders.  Something  other 
than  sentiment  and  superficial  treatment  is  re- 
quired. Drastic  measures  of  the  nature  of  surgi- 
cal operations  are  not  infrequently  demanded. 

Having  considered  in  this  cursory  manner  Recent 

i  r>     i  •    i  •      •      i  •  i          Arbitrations 

the  wars  of  the  past  eighteen  years,  it  is  like- 
wise instructive  to  consider  briefly  the  principal 
arbitrations  of  the  same  period.  Since  the 
adoption  of  The  Hague  Convention  for  the 
Pacific  Settlement  of  International  Disputes 
in  1899,  fourteen  or  more  controversies  have 
been  submitted  to  Arbitration  by  nations  who 
were  parties  to  that  Convention  and  to  the 
amended  Convention  of  1907.  These  Arbi- 
trations have  been  hailed  by  many  as  great 
triumphs  for  peace  under  the  assumption  that 
they  removed  just  so  many  possible  causes  of 
war.  A  closer  study  of  the  facts  does  not  tend 
to  confirm  this  point  of  view.  It  rather  con- 
firms the  impression  that  Arbitration  is  essen- 
tially limited  in  its  scope  and  functions. 

The  Pious  Funds  Arbitration  of  1902  con-  Pious  Funds 
cerned  certain  funds  held  in  trust  by  Mexico 


88  INTERNATIONAL  REALITIES 

and  claimed  by  the  United  States  in  behalf  of 
the  Catholic  Bishop  of  California.  Involving  as 
it  did  the  interpretation  of  treaty  agreements 
and  also  of  a  previous  arbitral  award,  this 
question  was  peculiarly  fitted  for  reference  to 
Arbitration.  It  was  in  fact  much  better  suited 
for  arbitral  adjustment  than  through  diplo- 
matic negotiations. 

Venezuelan          The   Venezuelan    Preferential   Claims   Arbi- 

Preferential  •  r  •  j  i    •  i  -  i 

Claims  t ration  of  1904  in  regard  to  certain  claims  which 

England,  Germany,  and  Italy  had  sought  to 
collect  by  force  was  also  admirably  suited  for 
an  arbitral  decision.  Venezuela,  unfortunately, 
was  obliged  to  sign  a  protocol  submitting  these 
claims  to  Arbitration,  framed  in  such  form  as 
virtually  to  authorize  the  tribunal  to  issue  an 
award  containing  a  lamentable  recognition  of 
the  preferential  rights  of  those  nations  which 
resort  to  force  in  the  collection  of  their  debts. 

Japanese  The  Japanese  House  Tax  case  in  1905;  the 

et°ai!e  Mascat  Dhows  case  of  the  same  year;  the  Mari- 

time Boundary  question  between  Norway  and 
Sweden  in  1909;  the  Canevaro  Claim  of  1911; 
and  the  Russian  Indemnity  question  with 
Turkey  of  the  same  year,  were  all  matters  of 
relative  unimportance,  too  technical  in  some 


THE  LIMITATIONS  OF  ARBITRATION    89 

instances,  and  controversial  in  others,  to  be 
readily  or  properly  settled  by  Diplomacy.  Ar- 
bitration was  therefore  of  special  service  in  all 
these  instances. 

The  incident  at  Casablanca,  Morocco,  in  Casablanca 
1909,  concerning  the  custody  of  a  German  de-  r  ' 
serter  from  the  French  Foreign  Legion,  though 
not  in  itself  a  sufficient  cause  for  war,  was  one 
which  might  have  furnished  an  occasion  for 
war  had  either  nation  been  so  inclined.  Neither 
nation  was  apparently  inclined  or  ready  for 
war,  although  considerably  stirred  up  by  this 
incident.  It  was  accordingly  referred  to  Ar- 
bitration with  the  result  that  the  award  as- 
sumed the  nature  of  a  compromise,  an  adjust- 
ment involving  very  little  International  Law 
and  a  good  deal  that  was  absurd. 

So  also  with  the  Savarkar  incident  between  savarkar 
France  and   England  in   1911   concerning  the  Case 
custody  of  an  Indian  who  sought  asylum  at 
Marseilles  from  the  hands  of  British  officials; 
and  particularly  the  Carthage  and  Manouba  in- 
cidents of  1912  between  France  and  Italy  in 
regard  to  French  ships  detained  by  Italian  war- 
ships during  the  war  with  Turkey.     None  of 
these   incidents   were  worth    fighting   over   in 


QO  INTERNATIONAL  REALITIES 

themselves,  nor  were  they  worth  acrimonious 
discussion.  Arbitration  was  the  easiest  method 
available  for  the  settlement  of  these  annoying 
difficulties. 

North  Much  has  been  made  of  the  North  Atlantic 

Fisheries  Fisheries  Arbitration  between  England  and  the 
United  States  respecting  the  rights  of  American 
fishermen  off  the  coasts  of  Newfoundland  and 
Labrador.  As  a  question  involving  the  inter- 
pretation of  treaties  and  state  documents,  it  was 
well  adapted  for  arbitral  decision.  The  wonder 
was  that  it  had  not  long  before  been  removed 
from  the  diplomatic  table.  The  award,  as 
Doctor  Lammasch,  the  President  of  the  Tri- 
bunal, remarked,  "contained  elements  of  a  com- 
promise." 1  It  was,  in  effect,  a  conciliatory  ad- 
justment which  recognized  British  sovereignty 
but  allowed  the  main  American  contentions. 
Sir  William  Robeson,  then  Attorney-General 
for  England,  is  said  to  have  made  the  following 
significant  commentary  on  the  award:  "We 
saved  our  sovereignty  but  cannot  use  it."  The 
decision  in  this  case,  as  in  most  Arbitrations, 
carefully  avoided  anything  of  the  nature  of 
judicial  legislation.  International  Law  cannot 
be  said  to  have  been  increased  or  strength- 

1  American  Journal  of  International  Law,  1911,  p.  725. 


THE  LIMITATIONS  OF  ARBITRATION    91 

ened  by  the  decision.  On  the  contrary,  in 
denying  the  existence  of  International  Servi- 
tudes, the  Tribunal  ventured  to  annul  a  portion 
of  International  Law  long  accepted  as  analo- 
gous to  easements  under  Common  Law. 

To  be  classed  with  Arbitration,  in  a  sense,  Dogger  Bank 
is  the  special  Commission  of  Inquiry  desig-  mcident 
nated  by  England  and  Russia  to  investigate  and 
virtually  adjust  the  Dogger  Bank  incident  of 
1905,  when  a  Russian  fleet  fired  on  innocent 
English  trawlers  under  the  fantastic  fear  of  a 
phantom  Japanese  attack.  Time  is  often  the 
best  ally  of  Diplomacy,  and  in  embarrassing 
situations  of  this  nature  not  worth  bitterness 
of  discussion  or  actual  hostilities,  Commissions 
of  Inquiry  serve  a  most  admirable  purpose. 

In  considering  the  various  wars  and  Arbi-  Recent 
trations  since  1898,  it  is  also  very  suggestive  to  Adjustments 
bear  in  mind  certain  diplomatic  adjustments  of 
the  same  period,  when  Arbitration  was  unavail- 
able because  of  the  nature  of  the  questions  at 
issue,  and  war  was  possible  of  avoidance.     In 
1899,  for  example,  Germany,  England,  and  the 
United  States  reached  a  definite  agreement  in 
respect  to  the  partition  of  the  Island  of  Samoa, 
after  years  of  diplomatic  discussions  and  tern- 


92  INTERNATIONAL  REALITIES 

porary  arrangements.  England  and  France  in 
1904,  after  long  years  of  distrust,  rivalry,  and 
bitterness  culminating  in  the  famous  Fashoda 
incident  of  1898,  were  able  to  effect  an  entire 
settlement  of  all  outstanding  differences.  By 
this  arrangement,  France,  among  other  things, 
received  a  free  hand  in  Morocco  in  return  for  a 
recognition  of  England's  interests  in  Egypt. 
In  a  similar  manner,  England  and  Russia  put 
an  end  to  their  ancient  and  bitter  antagonisms, 
in  1907,  by  coming  to  a  general  understanding 
which  included  the  virtual  partition  of  Persia, 
as  well  as  other  matters  of  vital  importance. 
There  have  been  other  agreements  between 
France  and  various  Powers  in  regard  to  Mo- 
rocco. Germany,  as  a  result  of  its  spectacular 
protest  at  Agadir  in  1912,  received  a  large 
piece  of  French  territory  in  Central  Africa,  in 
return  for  the  relinquishment  of  her  preten- 
sions in  Morocco,  while  Spanish  claims  were 
satisfied  by  the  cession  of  the  Northern  part 
of  that  country.  Both  of  these  agreements  put 
an  end  to  extremely  embarrassing  and  threat- 
ening situations.  It  is  of  special  interest  to 
note  also  that,  according  to  information  of  a 
trustworthy  character  from  both  British  and 
German  sources  disclosed  since  the  outbreak  of 


THE  LIMITATIONS  OF  ARBITRATION    93 

the  Great  War  in  1914,  Germany  and  England 
had  already  arrived  at  an  agreement  in  prin- 
ciple concerning  their  respective  interests  in 
Turkey  and  Persia. 

In  all  these  instances  the  questions  settled  Nature  of 
by  diplomatic  agreements,  relating  as  they  did  a  JUS 
to  the  territory  and  rights  of  other  States, 
were  entirely  unsuited  for  Arbitration.  Though 
conducing  for  the  time  being  to  the  general 
peace  of  Europe,  such  arrangements  have  been 
characterized,  in  part,  by  a  frank  disregard  of 
the  precepts  of  International  Law,  and  the  in- 
terests of  other  nations,  weaker,  and  less  ad- 
vanced in  civilization.  Questions  of  this  kind, 
it  should  be  conceded,  are  mainly  of  a  political 
nature  as  affecting  conflicting  national  inter- 
ests, whether  just  or  unjust.  They  are  not  es- 
sentially judicial,  admitting  of  the  application 
of  known  principles  of  law  by  authorized  tri- 
bunals. Nor  is  there  an  international  legisla- 
ture empowered  to  settle  such  controversies. 
They  must  therefore  either  be  decided  by  diplo- 
matic agreements,  or  by  recourse  to  war,  if  the 
interests  at  stake  so  warrant. 

From  this  rapid  survey  of  the  wars,  Arbitra-  Conclusions 
tions,   and  diplomatic  settlements  of  the  last 


94  INTERNATIONAL  REALITIES  • 

eighteen  years,  it  would  seem  that  we  are  justi- 
fied in  drawing  the  following  conclusions  in  re- 
gard to  the  scope  and  the  functions  of  Arbitra- 
tion. 

i-  I.     It  is  evident  that  nations  no  longer  go 

Causes  of  war  r  .    .    ,  .  ., 

not  trivial  to  war  *or  trivial  reasons,  such  as,  for  example, 
the  gratification  of  the  ambitions  of  irrespon- 
sible monarchs.  They  resort  to  the  arbitrament 
of  the  sword  only  over  questions  vitally  affect- 
ing their  existence  as  international  entities, 
questions  which  no  one  else  has  the  right  to 
determine. 

n-  II.     Nations  go  to  war  only  when  Diplomacy 

resort  fails,  and  Arbitration,  because  of  the  nature  of 

the  questions  at  issue,  is  quite  impotent  to 
find  a  solution,  or  impose  its  award.  Where 
the  rights  may  be  entirely  on  one  side,  there 
is  naturally  nothing  for  the  other  to  defer  to 
Arbitration.  So,  likewise,  there  can  be  no  Arbi- 
tration where  nations  arbitrarily  decide  the 
fate  of  third  nations,  such  as  Persia  and  Mo- 
rocco, for  example. 


in.  III.     Nations  resort  to  Arbitration  as  a  rule 

for  imhnport-    on^  *n  t^1086  cases  which,  though  sometimes 
ant  matters      offering  plausible  pretexts  or  occasions  for  war, 


THE  LIMITATIONS  OF  ARBITRATION    95 

are  not  in  themselves  worth  fighting  over,  and 
are  too  troublesome  for  Diplomacy  to  adjust. 

IV.  Nations  resort  to  Arbitration  not  for  iv 
purposes  of  strict  justice,  but  for  an  impartial, 
conciliatory  adjustment  of  conflicting  claims. 
Arbitral  tribunals  have  not  the  functions  or  the 
powers  of  courts  of  justice.  This  is  due  pri- 
marily to  the  absence  of  international  statutes 
defining  rights  and  obligations,  and  imposing 
penalties  for  wrong-doing.  Furthermore,  there 
is  no  feasible  means  for  the  enforcement  of 
arbitral  awards,  and  consequently  arbitral 
tribunals  are  extremely  cautious  in  their  de- 
cisions not  to  penalize  severely.  They  also 
wisely  refrain  from  anything  savoring  of 
judicial  legislation.  The  exact  powers  and 
functions  of  arbitral  tribunals  are  not  deter- 
mined by  a  general  law,  or  usage,  but  by  the 
compromis,  the  specific  agreement  submitting 
a  given  controversy  to  Arbitration.  This 
compromis,  or  protocol,  even  ventures  at  times, 
as  in  the  case  of  the  Alabama,  to  prescribe  the 
law  to  be  applied.  Judges  in  real  courts  of 
justice  would  never  consent  to  restrictions  on 
their  freedom  of  judgment  with  due  regard  for 
usage,  precedents,  and  the  ends  of  justice  it- 
self. At  the  present  stage  of  international 


96  INTERNATIONAL  REALITIES 

development,  true  courts  of  justice  are  not  yet 
attainable  for  the  determination  of  all  litigation 
between  nations.  It  is  therefore  an  inexcusable 
confusion  of  terms  to  speak  of  the  "Court  of 
Arbitral  Justice"  proposed  by  The  Hague  Con- 
ference of  1907.  The  designation  itself  sug- 
gests somewhat  the  doubtful  nature  of  Arbitra- 
tion. Questions,  therefore,  which  have  been 
rather  loosely  characterized  as  "justiciable"  in 
their  nature,  that  is  to  say,  which  may  be 
determined  in  accordance  with  the  principles 
of  law  and  equity,  should  not  properly  be  the 
subject  of  arbitral  decision.  If  submitted  to 
Arbitration,  the  compromis  of  submission  should 
be  most  careful  to  formulate  the  principles  of 
law  on  which  the  tribunal  should  base  its  de- 
cision. Otherwise,  it  is  quite  certain  to  seek  a 
conciliatory  adjustment  of  the  difficulty,  not 
of  a  "justiciable"  character.  It  is  for  reasons 
of  this  nature  that  we  are  justified  in  the  con- 
clusion that  nations  do  not  resort  to  Arbitra- 
tion for  purposes  of  strict  justice,  fully  pre- 
pared to  submit  to  all  its  rigors  and  penalties. 
Arbitration  is  generally  invoked  within  re- 
stricted limits  for  the  purpose  of  obtaining  an 
impartial,  conciliatory  adjustment  of  conflict- 
ing pretensions. 


THE  LIMITATIONS  OF  ARBITRATION    97 

V.  Except   in   certain    questions   involving  v. 
the  interpretation  of  treaties  and  other  written 
agreements,   the    arbitration    protocol    practi-  diplomacy 
cally  determines  in  advance,  as  in  the  Vene- 
zuelan   Preferential    Claims,    or   the   Alabama 
Claims,  the  exact  lines  along  which  the  decision 

is  to  be  reached.  This,  of  course,  means  that 
Diplomacy  has  already  approached  very  near 
to  a  settlement,  the  exact  terms  of  which  are 
to  be  left  to  the  judgment  of  the  arbitral 
tribunal,  the  "compositeur  aimable."  Greater 
honor  is  therefore  due  in  such  instances  to 
those  who  draft  the  agreement  for  Arbitration 
than  to  Arbitration  itself. 

VI.  Finally,  viewed  in  the  light  of  all  that  vi. 
has   preceded,   Arbitration,    far   from   being   a 
general  panacea  for  all  international  ills,  is  to  of  diplomacy 
be  considered  chiefly  as  an  adjunct,  an  auxiliary 

of  Diplomacy.  Limited  in  its  scope  and  func- 
tions, it  is  to  be  regarded,  together  with  Com- 
missions of  Inquiry,  as  a  welcome  and  valuable 
helpmeet  in  times  of  need  and  special  stress. 
In  the  process  of  time,  pari  passu  with  the 
evolution  of  International  Law  and  interna- 
tional polity,  Arbitration  may  increase  in  use- 
fulness and  take  on  more  and  more  of  the 
character  of  a  court  of  justice.  But  in  the 


98  INTERNATIONAL  REALITIES 

meantime,  the  advocates  of  the  pacific  settle- 
ment of  international  disputes  would  do  well 
not  to  discredit  Arbitration  by  placing  on  it  a 
greater  burden  than  it  is  yet  able  to  bear. 
We  should  frankly  recognize  that  it  is  still  a 
very  imperfect  instrument.  In  our  impatience 
for  the  realization  of  "the  perfection  in  inter- 
national relations,"  which  Lorimer  states  to  be 
the  true  object  of  the  law  of  nations,  we  must 
continually  remind  ourselves  that  "the  sub- 
stitution of  law  for  war"  is  a  slow,  laborious 
process.  It  is  an  inspiring  task  calling  for 
great  patience,  courage,  and  faith. 


CHAPTER  V 
INTERNATIONAL  ADMINISTRATION 

James    Lorimer,    that    vigorous    and    most  world 
stimulating   Scotch   publicist,   treating   of  the  organj 
question  of  world  organization,  remarked  more 
than  thirty  years  ago  that: 

The  great  impediment  (in  the  way  of  the  growth  of 
international  jurisprudence)  ...  is  the  hopelessness 
caused  by  the  debris  of  impossible  schemes  which  cumber 
our  path,  and  from  these  it  must  be  our  first  effort  to 
clear  it.1 

Among  the  "impossible  schemes"  must  prob-  Lonmer's 
ably  be  included  Lorimer's  own  earnest  attempt  schen 
to  solve  this  great  problem  which  he  character- 
ized as  the  "ultimate  problem  of  international 
Jurisprudence." 

Starting  with  the  assumption  that  interna- 
tional order  is  to  be  secured  in  very  much  the  . 
same  way  as  national  order,  he  says: 

Savages  are  incapable  of  municipal  organization  be- 
yond its  most  rudimentary  stages;  yet  it  is  by  means  of 
municipal  organizations  that  men  cease  to  be  savages.2 

1  Institutes,  II,  p.  197.  2  Ibid.,  p.  191. 

99 


ioo         INTERNATIONAL  REALITIES 

Following  out  the  logic  of  his  uncompli- 
mentary analogy  between  nations  and  savages, 
Lorimer  reaches  the  conclusion  that  an  inter- 
national legislature,  judiciary,  and  executive 
are  required  to  secure  that  order  and  freedom 
among  nations  which  he  holds  to  be  the  aim  of 
International  Law.  Candor  compels  him  to 
admit  that  "progress  in  the  direction  of  the 
ideal  by  means  of  mutual  aid,  regulated  by 
positive  law,  though  possible  within  the  state 
may  be  impossible  beyond  it;  the  ultimate 
problem  of  international  jurisprudence,  while 
demonstrably  inevitable,  may  be  demonstrably 
insoluble.  The  science  of  jurisprudence,  when 
prosecuted  in  the  direction  of  the  law  of  na- 
tions, may  end  in  a  reductio  ad  absurdum"  1 
Nevertheless,  Lorimer  has  the  courage  to  be- 
lieve in  an  international  administration  of  law 
comparable  to  the  enforcement  of  municipal 
law. 

Kant's  Immanuel    Kant,    presenting    another   "im- 

"^"etuai       possible  scheme"  in  his  memorable  essay  on 
peace"  "Perpetual  Peace,"  also  asserts  that: 

Nations  must  renounce,  as  individuals  have  renounced, 
the  anarchical  freedom  of  savages,  and  submit  themselves 
to  coercive  laws;  thus  forming  a  community  of  nations 

1  Ibid.,  p.  192. 


INTERNATIONAL  ADMINISTRATION    101 

(civitas  gentium)  which  may  ultimately  extend  so  as  to 
include  all  the  peoples  of  the  earth. 

Kant  is  careful,  however,  to  define  his  com- 
munity of  nations  as  meaning  "a  federation  of 
peoples,  but  not  necessarily  an  international 
state."1  He  furthermore  concedes  that: 

This  juristic  state  must  arise  from  some  sort  of  com- 
pact. This  compact  must  not  be  based,  however,  on 
compulsory  laws  like  that  lying  at  the  basis  of  a  state; 
it  must  rather  be  that  of  a  permanent  free  association, 
like  the  above-mentioned  federation  of  different  states.2 

It  would  seem  that  Kant,  in  his  instinctive  Nations  and 

•  •  i  •  •          individuals 

aversion  to  a  universal  state  possessing  coercive 
powers,  revealed  a  better  understanding  of  the 
facts  of  international  existence  than  Lorimer. 
The  trouble  with  many  such  attempts  to  deal 
with  international  problems  is  that  confusion 
of  thought  must  always  arise  whenever  we  try 
to  reason  by  analogy  between  nations  and  in- 
dividuals. This  is  evident  in  considering 
questions  of  honor,  morality,  and  particularly 
so  in  treating  of  the  international  functions  of 
the  State. 

In  considering  the  problem  of  the  interna- 
tional administration,  we  ought  clearly  to  rec- 

1  Ibid.,  p.  224.  2  Quoted  by  Lorimer  in  Institutes,  II,  226. 


102         INTERNATIONAL  REALITIES 

ognize  at  the  outset  that  nations  do  not  meet 
together  and  intermingle  in  a  community  as  do 
individuals.  They  do  not  merge  their  interests 
as  "savages  renouncing  anarchical  freedom." 
They  do  not  agree  on  common  conceptions 
either  of  legal  or  moral  rights  and  obligations, 
choose  their  own  magistrates,  accept  the  rule 
of  the  majority;  nor  for  mutual  advantage  sub- 
mit to  the  benign  rule  of  a  common  sovereign. 

Municipal  Individuals  have  every  reason  to  come  in- 

community  timately  together  in  the  daily  pursuit  of  a  vital 
community  of  interests.  Through  their  political 
organization  they  may  secure  ready  and  effec- 
tive checks  on  the  abuse  of  power  by  legisla- 
ture, judges,  and  executive.  As  live,  integral 
parts  of  a  municipal  organization,  they  can 
regulate,  alter,  abolish,  and  create  anew  the 
national  state  within  which  they  have  chosen 
to  merge  their  interests. 

international  It  is  obvious  that  hardly  any  of  this  reasoning 
community  applies  to  international  relations.  The  most 
that  nations,  jealous  of  their  integrity,  and 
conscious  of  their  exalted  missions,  ask  of  each 
other  is  freedom  to  achieve  their  own  worthy 
ends.  That  freedom  is  to  be  found  in  separate 
existence,  not  in  a  community  existence:  in  a 


INTERNATIONAL  ADMINISTRATION    103 

mutual  recognition  of  each  other's  interests, 
not  in  submission  to  a  common  sovereign. 
They  cannot  possibly  accept  the  idea  of  a 
.n^rflnational  law  imposing,  as  does  municipal 
law,  trying  restrictions,  complicated  obligations, 
or  punitive  ordinances.  The  truth  of  this  has 
been  exceedingly  well  expressed  by  Reinsch,  in 
urging  the  necessity  of  co-operative  action  be- 
tween nations,  when  he  says: 

Any  attempt  to  urge  states  into  action  without  a 
specific  need,  on  the  mere  plea  of  the  interest  of  inter- 
nationalism, would  be,  in  so  far,  to  jeopardize  the  normal 
development  and  ultimate  success  of  the  great  movement 
which  is  one  of  the  most  notable  phenomena  of  the  era 
in  which  we  are  living.  Nor  should  we  expect  states 
readily  to  give  up  that  power  of  self-determination,  of 
freely  selecting  their  means,  methods,  and  activities, 
which  constitutes  the  essence  of  political  sovereignty; 
however  essential,  in  their  own  interest,  a  participation 
in  common  action  may  be,  they  still  remain  the  principal 
guardians  of  human  rights  and  interests,  and  ought  there- 
fore to  retain  to  themselves  the  necessary  freedom  of  ac- 
tion which  such  a  trust  requires.1 

The  desire  to  convert  International  Law  into  international 
.n^rflnational    law    arises    probably    from    the 
Austinian  concept  of  the  need  of  a  superior 
sanction  to  law,  a  concept  which  has  obscured 

1  Public  International  Unions,  p.  142. 


io4          INTERNATIONAL  REALITIES 

the  profound  fact  that  the  law  of  nations  is  of 
a  distinctly  different  character  from  municipal 
law. 

It  may  truly  be  affirmed  that  the  lex  gentium 
is  of  a  more  elevated  nature.  Applying  as  it 
does  inter  gentes,  it  does  not  appeal  to  the 
policeman;  it  appeals  to  reason  itself,  to  the 
sense  of  equity,  to  a  higher  moral  consciousness. 
It  is  based  solidly  on  the  Golden  Rule  inter- 
preted in  an  imperative,  utilitarian,  and  ethical 
sense,  as  enlightened  self-interest.  It  is  simply 
the  recognition  of  mutual  interests,  of  common 
legal  rights  and  obligations.  And  the  basic 
sanction  of  the  law  of  nations  consists  in  the 
consciousness  of  what  Gareis  has  concisely 
stated  as  "anticipated  advantages  of  reciproc- 
ity as  well  as  fear  of  retaliation."  1 

interests  of  It  would  seem  clear,  therefore,  that  what  is 
needed  is  not  a  sovereign  international  organi- 
zation to  create,  interpret,  and  enforce  law. 
The  need  is  rather  of  a  complete,  just  under- 
standing between  nations  as  to  what  constitutes 
their  mutual  interests. 

International  International  congresses  and  conferences  as 
adjuncts  to  diplomacy  are  greatly  to  be  favored 

1  Science  of  Law,  p.  288. 


INTERNATIONAL  ADMINISTRATION    105 

in  order  to  accomplish  this  great  end.  The 
functions  of  such  conferences  are  of  two  kinds : 
one,  political — and  this  the  most  fundamental 
— to  determine  the  respective  rights  of  national- 
ities in  all  that  is  essential  to  their  free  develop- 
ment; and  the  other,  legislative,  in  order  to 
formulate  the  law  which  shall  safeguard  these 
rights. 

The  establishment  of  an  international  tri-  international 
bunal  as  the  supreme  court  of  appeal  when 
doubts  arise  concerning  the  interpretation  of 
these  laws  is  of  course  a  logical  necessity. 
It  is  by  no  means  clear,  however,  that  such  a 
tribunal  should  possess  coercive  power,  any 
more  than  in  the  case  of  the  Supreme  Court 
of  the  United  States  in  controversies  between 
States. 

It  may  safely  be  asserted  as  a  general  prin-  NO  coercion 
ciple  that  any  compulsion  of  a  nation  that  does 
not  appeal  to  enlightened  self-interest  may 
prove  a  grave  menace;  and  where  enlightened 
self-interest  exists  there  is  no  need  of  compul- 
sion. At  any  rate,  in  a  normal  state  of  inter- 
national order  established  on  a  mutual  recog- 
nition of  definitely  formulated  interests,  if  a 
recalcitrant  nation  should  need  coercion  or 


io6          INTERNATIONAL  REALITIES 

chastisement,  such  an  unwelcome  task  might 
better  be  performed  through  some  such  limited 
agency  as  an  alliance  of  nations,  whether 
openly  avowed  or  in  the  disguised  form  of 
the  proposed  League  to  Enforce  Peace.  Power 
of  such  threatening  proportions  could  never 
readily  be  intrusted  by  nations  to  the  free 
action  of  a  genuine  international  executive. 

international  If  the  preceding  reasoning  be  accepted  as 
impossible  sound;  if  we  concede  that  International  Law 
has  no  pretense  to  be  supranational  law;  that 
it  invokes  no  sovereign  sanction,  but  appeals 
to  the  enlightened  self-interest  of  states;  then 
an  international  executive  becomes  unneces- 
sary and  even  abhorrent.  It  would  have  a 
thankless  task,  and  prove  a  constant  cause  of 
friction,  a  means  of  unjust  coercion,  a  menace 
to  national  sensibilities  and  convictions. 

Administra-  The  question  naturally  arises:  how,  then,  is 
International  International  Law  to  be  efficiently  adminis- 
Law  tered  ?  The  answer,  however,  seems  obvious; 

it  is  to  be  administered  by  national  agencies. 
The  courts  of  most  nations  are  generally  sym- 
pathetic to  the  law  of  nations.  It  is  of  pointed 
interest  to  note  that  even  now,  in  the  midst 
of  this  fearful  war,  the  Supreme  Court  of  the 


INTERNATIONAL  ADMINISTRATION     107 

German  Empire  should  have  seen  fit  to  protect 
the  patent  rights  of  a  French  national  actually 
fighting  in  the  trenches  in  the  defense  of 
France ! 

When  a  court  applies  International  Law  as  international 
a  part  of  Municipal  Law  there  can  hardly  be  Law  "1S  law" 
any  doubt  as  to  the  intrinsic  value  of  that  law.* 
The  difficulty  is  not  in  the  nature  of  the  law  of 
nations,  or  in  its  enforcement.     It  lies  in  the 
failure  of  nations  to  formulate  that  law  with 
precision,  or  to  provide  an  adequate  body  of 
law  covering  the  wide  range  of  subjects  which 
so  often  give  rise  to  international  litigation. 

This  is  particularly  evident  in  that  branch  of  Definition  of 
International  Law — which  is  truly  an  integral 
part — well  characterized  as  Conflict  of  Laws. 
The  grounds  for  these  conflicts  should  be  re- 
moved. The  rights  of  aliens  in  their  sojournings 
and  wanderings  as  citizens  of  the  world  should 
be  defined  by  mutual  agreement.  The  rights 
of  foreign  creditors,  for  example,  should  be 
clearly  determined.  So,  likewise,  in  regard  to 
what  may  be  termed  international  torts,  where 
aliens  are  wronged  by  acts  of  the  state. 

This  great  task  remains  in  large  measure  to 
be  performed  through  diplomatic  agreements, 


io8         INTERNATIONAL  REALITIES 

conferences,  and,  if  you  will,  through  interna- 
tional legislation.  The  problem  of  the  adminis- 
tration of  this  law  may  safely  be  left  to  national 
courts  under  the  safeguard,  in  some  instances, 
of  an  appeal  to  an  international  court. 

There  is  no  sound  reason  for  believing  that 
nations  actually  prefer  recourse  to  war,  or  even 
to  reprisals,  in  order  to  settle  differences  of  a 
clearly  justiciable  nature.  The  present  war  has 
demonstrated  all  too  eloquently  the  horrors, 
the  awful  cost,  and  the  folly  of  litigation  by 
force  of  arms.  If  the  just  political  aspirations 
and  national  rights  of  states  are  satisfactorily 
gratified  and  determined,  the  serious  grounds 
for  international  litigation  by  force  will  be 
effectively  removed.  This  can  be  done  neither 
by  the  imperious  will  of  a  conqueror,  nor  of  an 
international  sovereign  executive.  It  can  only 
be  accomplished  through  mutual  concessions, 
by  the  free  will  and  consent  of  nations. 

international         It  may  be  thought  that  in  eliminating  the 

administra-  •  i  •  i  •  t*  •  •          i         i      •    •  • 

tion  possibility  of  an  international   administration 

through  the  agency  of  a  supreme  executive,  we 
have  virtually  excluded  the  possibility  of  any 
international  administration  whatever.  But 
this  is  far  from  being  the  case.  On  the  con- 


INTERNATIONAL  ADMINISTRATION    109 

trary,  a  survey  of  the  already  existing  agencies 
for  international  administration  proves  most 
suggestive  and  encouraging. 

For  example,   the  European   Danube  Com-  Danube 
mission  has  been  of  very  great  value  in  time  of  Cor 
peace   in   the   regulation   of  the   international 
commerce  of  the  states  bordering  on  the  river, 
as  well  as  of  other  states  represented  on  the 
Commission. 

The  administration  of  the  Suez  Canal  in  the  Suez  Canal 
time  of  peace  has  been  of  an  international  char- 
acter, though  as  long  as  England  controls 
Egypt  it  would  be  obviously  a  fiction  to  af- 
firm that  this  waterway  was  truly  internation- 
alized. 

Tangiers  may  properly  be  denoted  as  an  in-  Tangiers 
ternational  city,  administered  as  it  is  by  rep- 
resentatives of  various  Powers.  Its  situation, 
however,  is  quite  abnormal,  constituting  a 
species  of  modus  vivendi,  in  view  of  the  con- 
flicting ambitions  of  France  and  Spain,  the 
Powers  most  vitally  concerned. 

A  most  interesting  problem  awaiting  solu-  Spitzbergen 
tion  at  the  outbreak  of  the  Great  War  in  1914 
was  the  disposition  of  the  icy  island  of  Spitz- 
bergen,  where   the   presence   of  coal   deposits 


no         INTERNATIONAL  REALITIES 

has  allured  foreigners  of  various  nationalities, 
and  required  the  establishment  of  some  form 
of  municipal  administration.  It  is  understood 
that  some  such  anomaly  was  agreed  upon  in 
principle,  though  the  precedent  of  the  con- 
dominium of  Samoa  by  England,  Germany,  and 
the  United  States  certainly  does  not  augur  well 
for  the  success  of  another  condominium  in 
Spitzbergen. 

Constant!-  We  are  perhaps  bound  in  this  connection  to 

speculate  somewhat  on  the  possibility  of  the 
internationalization  of  Constantinople  and  the 
two  neighboring  Straits.  It  may  be  conceded 
that  an  international  administration  by  officials 
of  some  such  nationality  as  the  Swiss  might 
prove  feasible  of  organization  and  successful  of 
operation.  From  the  political  point  of  view, 
however,  such  an  arrangement  could  hardly 
satisfy  in  the  long  run  the  ambitions  of  Russia 
to  hold  in  her  own  hands  the  best  natural  gate- 
way to  the  Empire.  The  uncertainty  that  an 
international  administration  would  be  able, 
though  willing,  to  effectively  guarantee  the  se- 
curity and  the  facilities  demanded  by  so  great 
an  Empire,  would  doubtless  constrain  Russia 
to  vigorously  oppose  any  such  arrangement. 
However  that  may  be,  if  it  be  granted  that 


INTERNATIONAL  ADMINISTRATION    in 

Constantinople  and  its  approaches  should  be 
internationalized,  such  an  arrangement  would 
be  necessarily  of  an  abnormal,  exceptional  char- 
acter. 

Other  abnormal  forms  of  international  ad-  Sanitary 

•    •  •  i         r  i     •          i         r        •          Board   Dette 

ministration  are  to  be  round  in  the  foreign  Publique 
Sanitary  Board  and  the  Dette  Publique  of 
Constantinople.  Imposed  on  the  Turks  to 
guard  against  dangerous  epidemics,  and  to 
protect  the  financial  interests  of  European  in- 
vestors, these  two  institutions,  respectively, 
have  been  an  affront  to  Ottoman  national  pride, 
and  cannot  claim  a  permanent  existence.  The 
Dette  Publique,  incidentally,  raises  the  inter- 
esting question  whether  there  should  be  an  in- 
ternational bankruptcy  law  which  would  per- 
mit of  placing  an  entire  nation  in  the  hands  of 
receivers  for  the  benefit  of  all  foreign  creditors, 
instead  of  in  the  hands  of  the  loan  sharks  of 
one  nation,  which  for  political  reasons  may  have 
encouraged  such  loans.  The  Sanitary  Board, 
likewise,  suggests  the  question  whether  nations 
should  not  be  authorized  to  intervene  in  the 
affairs  of  any  nation  which  may  be  criminally 
negligent  in  matters  involving  the  health  of 
neighboring  peoples. 


112 


INTERNATIONAL  REALITIES 


Exterritorial 
countries 


International 
Unions 


Other  special  instances  of  abnormal  adminis- 
tration are  to  be  found  in  the  Mixed  Courts  of 
Egypt  for  the  trial  of  cases  affecting  foreigners, 
and  in  the  foreign  settlements  of  Shanghai, 
Canton,  and  Tientsin.  It  is  certainly  of  in- 
terest to  note  that  in  countries  where  exterri- 
torial privileges  still  exist,  foreigners  have  found 
effective  ways,  even  while  their  respective  na- 
tions are  at  war,  to  administer  their  common 
municipal  settlements,  and  adjudicate  their 
legal  differences.  Such  arrangements,  however 
— it  must  be  repeated — can  only  be  regarded 
as  temporary  and  exceptional  in  character. 

Of  much  more  vital  interest  and  significance 
from  the  point  of  view  of  international  adminis- 
tration are  those  numerous  and  highly  impor- 
tant organizations  known  as  Public  Interna- 
tional Unions  which  have  to  do  with  such 
matters  as  Communication,  Economic  Inter- 
ests, Sanitation,  Police  Powers,  Scientific  and 
other  purposes. 

These  unions  may  be  characterized  as  non- 
political  and  non-lucrative,  as  opposed  to 
alliances  or  commercial  undertakings.  A  mere 
enumeration  of  certain  of  these  agencies  is 
most  suggestive.  The  Telegraphic  Union, 
The  Universal  Postal  Union,  The  International 


INTERNATIONAL  ADMINISTRATION    113 

Union  for  the  Protection  of  Industrial  Prop- 
erty, Work  of  Literature  and  Art,  The  Inter- 
national Red  Cross,  all  of  which  have  their 
home  in  Switzerland,  have  been  accomplishing 
most  beneficial  results  in  their  special  fields. 
There  are  also  the  Metric  Union  in  Paris,  the 
Agricultural  Institute  in  Rome,  the  Interna- 
tional Maritime  Office  at  Zanzibar  for  the  sup- 
pression of  the  slave-trade,  the  Permanent 
Office  of  the  Sugar  Convention,  the  Interna- 
tional Office  of  Customs  Tariffs,  and  the  Inter- 
parliamentary Union  at  Brussels.  Of  a  dis- 
tinct character  and  importance  is  the  Bureau 
of  Arbitration  at  The  Hague. 

When  one  considers  the  wide  range  of  sub-  Service 
jects  of  so  great  importance  to  the  peoples  of  ^^cd  by 
the  different  nations,  the  imagination  is  stirred 
with  the  possibilities  of  such  agencies  for  pur- 
poses of  international  administration.  In  just 
such  normal,  reasonable  ways  are  the  peoples 
of  the  earth  best  able  to  advance  their  com- 
mon interests  and  facilitate  that  mutual  un- 
derstanding which  must  lie  at  the  very  base  of 
International  Law.  In  a  similar  way  the  un- 
limited array  of  scientific,  literary,  religious, 
industrial,  economic,  and  other  societies  or- 
ganized between  nations  will  also  contribute 


ii4         INTERNATIONAL  REALITIES 

incalculably  to  the  breaking  down  of  prejudices 
and  the  "perfection  of  the  relations  between 
states,"  which,  according  to  Lorimer,  is  the  true 
purpose  of  International  Law.  Diplomacy  and 
law  itself  are  spared  considerable  strain  and 
friction  by  the  creation  of  all  these  agencies. 

international  The  most  interesting  and  pregnant  suggestion 
house118  nas  been  put  forth  to  the  effect  that  a  central 
international  bureau  might  well  be  established 
in  some  such  Olympic  precinct  as  Switzerland, 
to  serve  as  the  home  of  all  the  various  public 
international  unions,  a  kind  of  supreme  "clear- 
ing-house" for  these  and  many  of  the  other 
societies  and  organizations  having  a  non- 
political,  non-lucrative  purpose.  Such  a  sug- 
gestion would  seem  to  offer  the  most  fruitful 
possibilities  from  every  point  of  view  as  a 
practical  means  of  helping  on  the  cause  of  in- 
ternational solidarity. 

Pan-American  An  international  "clearing-house"  which  has 
in  it  the  elements  of  great  promise  is  the  Pan- 
American  Union  in  Washington.  Here  centre 
the  interests  of  twenty-one  American  republics. 
If  Canada  could  find  the  way  to  come  in,  this 
Union  would  comprise  virtually  the  whole  of 
the  Western  Hemisphere,  a  world  in  itself,  set 


INTERNATIONAL  ADMINISTRATION    115 

apart  from  the  troubled  worlds  of  Europe, 
Asia,  and  Africa. 

It  is  true  that  the  Pan-American  Union  as 
yet  possesses  little  power  of  an  administrative 
nature.  Nevertheless  it  exists  as  a  tangible 
utterance  of  an  ideal  that  may  ultimately  be 
realized.  There  do  not  seem  to  be  any  in- 
superable obstacles  in  the  way  of  conferring 
increased  powers  on  the  Union  to  at  least  dis- 
cuss questions  of  mutual  interest  to  the  nations 
concerned,  or  to  recommend  legislation  or 
action  which  their  relations  may  demand.  It 
is  quite  conceivable  that  the  Union  might  even 
be  given  legislative  power  to  enact,  ad  referen- 
dum, regulations  and  laws  on  specified  topics 
such  as  intercommunication,  trade,  industry, 
and  other  questions  of  a  like  character.  Here 
might  gradually  be  centred  the  routine  ad- 
ministration of  many  matters,  very  much  as  is 
done  now  through  the  various  international 
bureaus  established  in  Switzerland. 

It  is  possible,  of  course,  that  such  an  organi- 
zation through  the  natural  accretion  of  ad- 
ministrative powers  might  take  on  something 
of  the  character  of  an  international  executive. 
Whatever  might  be  its  ultimate  evolution,  by 
serving  as  a  general  "clearing-house,"  a  cen- 


n6         INTERNATIONAL  REALITIES 

tral  common  forum  for  discussion,  suggestion, 
or  even  legislation,  the  Pan-American  Union 
would  certainly  prove  of  immense  service  in 
achieving  some  degree  of  international  organi- 
zation in  at  least  this  portion  of  a  distracted 
world. 

Summary  By  way  of  summary,  I  have  endeavored  to 

establish  in  rough  and  cursory  outline  the  fol- 
lowing points: 

(1)  There  is  no  true  analogy  between  inter- 
national   and    municipal    problems.      Though 
nations   must  need   have  recourse  to  war   at 
times,   they    are   not    "savages."      The    ends 
sought  by  individuals  within  a  community  are 
very  different  from  the  ends  sought  by  nations 
within  the  community  of  nations. 

(2)  International   Law   is   quite   distinct   in 
character    from    municipal    law.      It    is    truly 
international,  and  not  supranational.     It  does 
not  appeal  for  its  recognition  and  enforcement 
to  a  sovereign  authority.     It  appeals  to  the 
sanction  of  enlightened   self-interest,  to   "an- 
ticipated advantages  of  reciprocity  as  well  as 
fear    of   retaliation."      Its    enforcement    must 
necessarily  lie  with  national  agencies,  though 
allowing   for   appeals   in   certain   instances   to 


INTERNATIONAL  ADMINISTRATION    117 

some  kind  of  authoritative  international  tri- 
bunal. 

(3)  The  great  need  is,  not  of  a  sovereign  en- 
forcement of  the  law  of  nations,  but  of  a  much 
more  comprehensive  and  definite  formulation 
of  that   law.     A   clear   understanding   of  the 
mutual  interests  of  states  which  it  is  the  ob- 
ject of  the   International   Law  to  protect   is 
urgently  required. 

(4)  Diplomacy  and  international  conferences 
can  accomplish  in  the  main  the  great  task  of 
determining  the  rights  and  obligations  of  states, 
and  of  providing  the  law  which  should  apply 
in  controversies  and  litigations  involving  these 
rights  and  obligations. 

(5)  Nations  cannot  jeopardize  the  freedom 
necessary  for  the  achievement  of  their  separate 
purposes  and  ideals  by  submitting  to  a  com- 
mon   sovereign    possessing    coercive    powers. 
An  international  executive  thus  becomes  un- 
desirable and  repugnant,  a  menace  to  the  legiti- 
mate aims  and  sensibilities  of  nations. 

(6)  If  an  international  executive  is  undesir- 
able, there  exist,  however,  other  agencies  of 
great  importance  for  purposes  of  international 
administration.     The  Universal  Postal  Union 
with  its  headquarters  in  Switzerland  is  an  ex- 


n8         INTERNATIONAL  REALITIES 

cellent  example.  By  utilizing  and  perfecting 
these  agencies,  by  providing  a  central  inter- 
national "clearing-house"  for  the  many  non- 
political,  non-lucrative  interests  of  nations — 
the  Pan-American  Union,  for  example — in- 
ternational solidarity  may  be  most  effectively 
attained.  In  like  manner  the  encouragement 
of  international  societies  and  congresses  cover- 
ing the  entire  field  of  human  interests  will  be 
of  immeasurable  aid  to  the  great  cause  of  inter- 
nationalism. 

Conclusion  In  conclusion,  therefore,  we  would  do  well  to 

consider  whether,  in  our  anxiety  to  accomplish 
something  definite  for  the  cause  of  world  peace, 
it  would  be  wise  to  attempt  the  creation  of  new 
international  agencies.  Would  it  not  be  pru- 
dent to  follow  Lorimer's  injunction  against 
"impossible  schemes,"  and  to  avoid  his  example 
by  adding  no  more  "debris"  in  the  pathway  of 
international  jurisprudence  ? 

We  cannot  presume  to  foretell  or  anticipate 
the  destinies  of  nations.  A  world  state  may 
yet  evolve.  We  are  not  concerned,  however, 
with  remote  events  of  a  problematical,  specula- 
tive nature.  Our  immediate  duty  would  not 
appear  to  impose  the  creation  of  a  perfect 


INTERNATIONAL  ADMINISTRATION     119 

scheme  of  world  organization.  Does  it  not 
rather  consist  in  the  utilization  and  perfection 
of  the  agencies  already  at  hand  ? 


CHAPTER  VI 


Munitions 
embargo 


United  States 

vs. 

Great  Britain 


IGNOMINIOUS  NEUTRALITY 

The  agitation  for  an  embargo  on  the  exporta- 
tion of  munitions  of  war  from  the  United 
States  has  obviously  been  partisan  in  character, 
in  order  to  offset  the  advantage  obtained  by 
England  and  her  Allies  through  the  control  of 
the  seas.  It  should  also  be  apparent  that  it 
would  be  unneutral  on  the  part  of  the  United 
States  to  modify  its  attitude  so  completely  in 
the  midst  of  this  war.  It  cannot,  indeed,  pre- 
tend to  adapt  its  attitude  to  the  varying  for- 
tunes of  war.  Nevertheless,  the  question  of 
the  sale  of  munitions  of  war  by  neutral  persons 
to  belligerents  is  of  very  great  interest,  in  the 
larger  questions  it  raises  concerning  the  nature 
and  obligations  of  neutrality. 

It  should  be  remembered  that  the  United 
States  once  complained  that  "England  was  the 
arsenal  of  the  Confederates,  from  whence  they 
drew  their  munitions  of  war,  their  arms,  and 
their  supplies."  While  it  was  admitted  that 


120 


IGNOMINIOUS  NEUTRALITY          121 

neutrals  might  properly  trade  in  military  sup- 
plies in  the  ordinary  course  of  commerce,  it 
was  "asserted  with  confidence  that  a  neutral 
ought  not  to  permit  a  belligerent  to  use  the 
neutral  soil  as  the  main,  if  not  the  only  base  of 
its  military  supplies,  during  a  long  bloody  con- 
test, as  the  soil  of  Great  Britain  was  used  by 
the  insurgents"  (Geneva  Arbitration). 

It  will  be  recalled  that  during  the  Franco-  Germany  vs. 
Prussian  War,  Prussia  also  complained  through  c 
its  Minister  to -the  Court  of  Saint  James,  Count 
von  BernstorfF,  "because  the  English  Govern- 
ment authorized  the  wholesale  forwarding  of 
arms  to  France,  and  thus  practised  a  neutral- 
ity, not  of  a  benevolent  character,  but  of  a 
character  prejudicial  to  the  interests  of  Ger- 
many, although  Germany  waged  a  war  for  a 
cause  which  England  herself  should  consider 
as  just."  1 

We  now  have  another  Count  von  BernstorfF,  Germany  vs. 
son  of  the  Prussian  Minister  who  presented     m 
this  complaint  to  England,  in  the  midst  of  a 
war  of  tremendous  significance,   presenting  a 
similar     argument    on    behalf    of    Germany, 
though,  curiously  enough,  there  is  no  attempt 

1  Staff  Papers,  LXX,  p.  73. 


122          INTERNATIONAL  REALITIES 

to  persuade  the  United  States  of  the  justice  of 
Germany's  cause. 

The  essence  of  this  argument  is  to  the  effect 
that  "the  United  States  is  building  up  a  power- 
ful arms  industry  in  the  broadest  sense";  that 
"this  industry  is  actually  delivering  goods  only 
to  the  enemies  of  Germany";  that  "if  it  is  the 
will  of  the  American  people  that  there  shall  be  a 
true  neutrality,  the  United  States  will  find 
means  of  preventing  this  one-sided  supplying 
of  arms."  l 

In  view  of  the  clear  and  entirely  convincing 
manner  in  which  the  United  States  has  dem- 
onstrated the  technical  right  of  neutral  mer- 
chants to  sell  munitions  of  war  to  belligerents — 
notably  in  Secretary  Lansing's  forceful  reply  of 
August  12,  1915,  to  representations  of  the 
Austro-Hungarian  Government  on  this  subject 
— there  would  seem  to  be  no  further  need  of 
argument.  The  technical  rights  of  neutral 
merchants  to  engage  in  this  commerce  are  not 
questioned,  as  admitted  by  Germany  in  the 
statement  that  "The  German  Government 
have  not  in  consequence  made  any  charge  of  a 
formal  breach  of  neutrality."  2 

1  German  Minister  for  Foreign  Affairs  to  Ambassador  Gerard, 
February  16,  1915. 

2  Memorandum  of  German  Embassy,  April  4,  1915. 


IGNOMINIOUS  NEUTRALITY          123 

The  serious  question  raised  is  of  much  wider  Nature  of 
import.    As  Germany  well  says:  "It  is  neces-  B 
sary  to  take  into  consideration  not  only  the 
formal  aspect  of  the  case,  but  also  the  spirit  in 
which  the  neutrality  is  carried  out."     We  are 
bound   to   re-examine  in   a   critical   spirit   the 
whole  problem  of  neutrality,  its  fundamental 
basis,  its  exact  nature,  its  alleged  rights  and 
obligations. 

The  supplying  of  munitions  of  war  on  a 
large  scale  to  belligerents  vividly  suggests  some 
of  the  extraordinary  inconsistencies,  the  pre- 
posterous anomalies  involved  in  any  attempt 
to  remain  strictly  neutral  in  a  great  world  war. 

Among  these  anomalies  is  the  fact  that  while  Ships  and 
it  is  generally  conceded  that  a  neutral  nation  a 
may  permit  private  trade  in  munitions,  it  is 
not  permissible  to  sell  ships  of  war.  The  dis- 
tinction between  arms  and  ships,  the  one  for 
ultimate  use,  the  other  for  proximate  use  in 
warfare,  is  somewhat  too  refined  for  ordinary 
common-sense  forms  of  reasoning,  or  for  what 
has  been  well  termed  "the  rough  jurisprudence 
of  nations."  So,  likewise,  is  the  distinction 
which  permits  the  exportation  of  military  aero- 
planes, or  submarines  in  parts,  though  forbid- 


124          INTERNATIONAL  REALITIES 

ding  the  sale  of  vessels  ultimately  destined  for 
warlike  use. 

Another  extraordinary  phase  of  this  question 
is  the  difficulty  of  defining  munitions  of  war. 
As  a  matter  of  fact  they  are  not  merely  arms 
and  ammunition,  ships  and  cannon.  As  Lori- 
mer  truly  says:  "They  are  what  war  demands, 
whether  it  is  shot  and  shell,  shoes  and  stock- 
ings."1 .  .  .  "All  objects  are  munitions  of  war 
if  a  belligerent  is  in  want  of  them;  and  no  ob- 
jects are  munitions  of  war  unless,  or  until,  he  is 
in  need  of  them.  Salt  beef  and  saltpetre  are 
precisely  on  the  same  footing  in  this  respect; 
and  steel  bayonets  may  be  a  superfluity  where 
steel  pens  are  a  desideratum."  2 

If  provisions  are  more  urgently  required  than 
arms  to  enable  a  belligerent  to  hold  out  and 
finally  win,  a  neutral  nation  must  naturally 
render  a  greater  service  by  permitting  such 
peaceful  traffic  than  by  the  sale  of  ships  and 
guns.  The  logic  of  such  a  situation  would 
impose  either  a  complete  prohibition  of  trade 
between  neutrals  and  belligerents,  or  no  re- 
strictions whatever. 

Consider  the  matter  of  enlistments.  A  neu- 
tral nation  is  bound  not  to  allow  belligerents 

1  Institutes,  II,  160.  2  Ibid.,  135. 


IGNOMINIOUS  NEUTRALITY          125 

to  open  recruiting  agencies  on  its  territory,  but 
it  is  not  bound  to  prevent  its  citizens  from  giv- 
ing their  services  in  various  capacities  to  the 
belligerents.  A  neutral  citizen  may  contract  to 
provide  arms  and  ammunitions,  but  may  not 
contract  to  give  his  own  services  as  a  soldier,  or 
engage  the  services  of  others. 

Take  again  the  question  of  loans,  the  supply-  Loans 
ing  of  the  "  sinews  of  war."  They  may  be  made 
publicly  by  belligerents  on  neutral  soil;  but 
public  subscriptions  and  collections  in  their 
behalf  are  unneutral !  Though  a  public  loan 
may  enable  a  hard-pressed  belligerent  to  con- 
tinue the  war  to  a  successful  conclusion,  it  is 
quite  an  innocent  commercial  transaction,  while 
the  subscription  is  an  unneutral  service ! 

In  all  these  ways  it  is  permissible  for  neutral 
countries  to  serve  as  the  base  of  supplies,  the 
"arsenal,"  the  treasure-house  of  money  and 
men,  without  being  technically  what  Hiibner 
calls  either  "a  party  or  a  judge"  in  respect  to 
the  belligerents. 

But  there  are  other  anomalous   aspects  of  Rights  of 
this  weird  thing  called  neutrality.    If  a  neutral 
nation  may  permit   all  these   acts,   it  is   still 
liable  to   serious   interference  on  the  part  of 
belligerents.     For  example,  neutral  merchants 


126         INTERNATIONAL  REALITIES 

may  engage  with  impunity  in  the  trade  of 
munitions  with  a  belligerent  if  their  nation  is 
contiguous  to  his  territory;  but  such  trade  may 
be  effectively  prevented,  the  contraband  con- 
fiscated, the  vessel  itself  condemned,  if  found 
on  the  high  seas.  Moreover,  while  theoretically 
the  neutral  nation  may  claim  the  right  to  trade 
freely  with  the  belligerents,  it  must  be  prepared 
to  acquiesce  in  the  rights  of  belligerents  to  in- 
stitute complete  blockades  of  ports,  coasts,  or 
— as  would  now  appear  to  be  the  case — the 
blockade  of  an  entire  nation,  the  establishment 
of  a  stupendous  siege. 

When  one  considers  dispassionately  all  these 
anomalies,  these  incongruities,  these  absurdities, 
even,  of  neutrality,  he  is  constrained  to  chal- 
lenge the  very  basis  and  nature  of  that  abnormal 
institution,  and  to  ask  whether  in  a  war  of 
far-reaching  effects  and  significance  it  is  possi- 
ble for  any  self-respecting  nation  to  maintain  a 
perfect  neutrality  or  remain  truly  neutral. 

The  definition  of  neutrality  as  "a  continu- 
ance of  a  state  of  peace"  between  neutrals  and 
belligerents  is  obviously  untrue  in  the  light  of 
the  many  restrictions  which  neutrals  are  bound 
to  permit  and  the  trying  obligations  they  are 
bound  to  fulfil. 


IGNOMINIOUS  NEUTRALITY          127 

Neutrality  is  by  no  means  a  normal  state  of  Neutrality 
affairs.  It  is  essentially  an  abnormal  relation  abnormal 
based  on  a  hideously  abnormal  state  of  affairs. 
War  is  the  negation  of  law:  inter  arma  silent 
leges.  Litigation  by  force  of  arms,  international 
disorder,  the  general  disorganization  of  the 
community — all  this,  of  necessity,  places  bellig- 
erents and  neutrals  in  an  entirely  abnormal 
situation.  As  Lorimer  soundly  observes:  "It 
is  necessity  alone  which  can  justify  either  war 
or  neutrality,  and  necessity  is  not  a  source  of 
normal  rights  and  duties."  1 

War  and  neutrality  being  essentially  abnor-  Belligerent  vs. 
mal  in  character,  the  next  fact  to  be  observed 
is  the  inevitability  of  a  clash  between  interests 
of  belligerents  and  neutrals.  When  nations 
are  impelled  to  stake  everything  on  the  battle- 
field, to  make  the  uttermost  sacrifice,  they 
must  perforce  look  upon  the  interests  of  in- 
different neutrals  as  of  relative  unimportance. 
Prudence,  the  military  exigencies  of  the  situ- 
ation, as  well  as  a  decent  consideration  for 
others  and  for  the  rights  of  humanity,  will 
naturally  restrain  belligerents  from  interfering 
as  far  as  possible  with  neutral  nations.  But 
the  brute  fact  still  remains  that  the  interests  of 

1  Institutes,  II,  p.  125. 


128          INTERNATIONAL  REALITIES 

neutrals,  when  they  clash  with  the  pressing 
necessities  of  belligerents  in  the  throes  of  a 
tragic  struggle,  sink  into  relative  insignifi- 
cance. 

Neutral  rights  It  is  for  these  reasons  that  it  is  a  thankless 
task  to  attempt  to  define  the  positive  rights  of 
neutrals :  they  are  largely  negative  in  character, 
varying  with  the  nature  of  the  contest.  They 
are  in  the  main  such  as  the  belligerents  may 
choose  to  concede  according  to  the  issues  at 
stake.  This  is  why  such  a  question  as  the  law- 
ful use  of  submarines  is  necessarily  surrounded 
with  so  much  uncertainty.  This  is  why  it  was 
found  necessary  to  organize  the  Armed  Neu- 
tralities of  1780  and  1800  in  defense  of  the 
alleged  rights  of  neutrals. 

War  of  1812  The  United  States  had  ample  opportunity 
during  the  Napoleonic  wars  to  learn  that  the 
role  of  a  neutral  is  exceedingly  difficult.  It  will 
be  recalled  how  England  and  Napoleon  deliber- 
ately waged  war  on  each  other  through  neu- 
trals; how  skilfully  Napoleon  manoeuvred  the 
United  States  into  war  with  Great  Britain, 
when,  as  a  matter  of  fact,  we  might  with  as 
much  reason  and  better  justification  have  gone 
to  war  with  her  enemies. 


IGNOMINIOUS  NEUTRALITY          129 

And  now  history  is  repeating  itself  in  a  most  Modem 
remarkable  manner.  The  United  States  finds  paraU< 
itself  directly  and  seriously  affected  by  a  war 
of  greater  magnitude  and  significance.  Its  in- 
terests are  being  interfered  with  by  both  sides, 
while  one  of  the  belligerents,  in  imitation  of 
Napoleon's  tactics,  is  avowedly  employing 
drastic  measures  of  retaliation  affecting  neutral 
interests,  in  the  hope  that  pressure  may  be 
brought  to  bear  on  the  other  belligerent  to 
modify  its  methods  of  warfare.  The  United 
States  is  thus  again  made  to  realize  that  neu- 
trals must  in  some  instances  either  endure  con- 
siderable interference  with  their  interests  or 
else  fight.  The  maintenance  of  neutrality  under 
such  conditions  becomes  increasingly  difficult 
or  well-nigh  impossible. 

Thus  far  we  have  been  mainly  considering  Obligations  of 
the  rights  of  neutrals;    it  is  necessary  also  to 
bear  in  mind  their  obligations. 

The  general  obligation  of  a  neutral  is  usually 
defined  as  non-participation  in  the  contest.  It 
must  not  allow  its  territory  to  be  used  as  a 
base  of  operations — the  improper  use  of  wire- 
less, for  example — nor  permit  any  kind  of  act 
which  would  indicate  partiality.  A  fictitious 
impartiality  which,  under  the  guise  of  affording 


130         INTERNATIONAL  REALITIES 

equal  opportunities  to  all,  really  affords  special 
facilities  for  the  only  side  able  to  avail  itself  of 
the  chance,  as,  for  example,  the  use  of  French 
territorial  waters  by  the  Russian  fleet  during 
the  Russo-Japanese  War,  is  obviously  not  neu- 
trality. The  "benevolent"  neutrality  such  as 
Prussia  claimed  from  England  in  the  Franco- 
Prussian  War,  though  countenanced  in  prin- 
ciple by  Grotius,  is  plainly  a  euphonism  for  un- 
neutral  neutrality. 

Anything  which  renders  a  neutral  nation  of 
special  service  to  a  belligerent,  particularly  as 
a  base  of  supplies,  as  an  "arsenal" — to  employ 
the  term  used  by  the  United  States  in  the 
Geneva  Arbitration — is  calculated  to  make  it 
hated  by  the  other  belligerent.  In  other  words, 
that  nation  which  desires  to  remain  neutral 
may  find  not  only  that  its  alleged  rights  are 
seriously  violated,  but  that  it  is  placed  under 
an  obligation  of  impossible  vigilance  to  avoid 
appearing  either  as  the  "benevolent"  neutral 
or  the  open  partisan. 

There  are  those  who  virtually  ask,  as  does 
Germany  in  respect  to  the  sale  of  munitions, 
that  a  neutral  nation  should  alter  its  procedure 
and  laws  so  as  to  redress  the  balance  upset  by 
the  varying  fortunes  of  war.  This  is  asking  the 


IGNOMINIOUS  NEUTRALITY          131 

impossible.  It  was  for  this  reason  that  the 
preamble  of  the  Hague  Convention  of  1907 
concerning  the  rights  and  duties  of  neutral 
Powers  in  naval  war  contained  the  provision 
that:  "These  rules  should  not  in  principle  be 
altered,  in  the  course  of  the  war,  by  a  neutral 
Power,  except  in  a  case  where  experience  has 
shown  the  necessity  for  such  change  for  the  pro- 
tection of  the  rights  of  that  Power" 

Taking  into  account  the  basis  and  the  nature  Difficulties  of 
of  neutrality  and  the  extraordinary  difficulties  neutrality 
in  the  way  of  its  effective  maintenance,  it  would 
appear  that  the  nation  which  desires  to  insist 
on  a  free  exercise  of  neutral  privileges  virtually 
finds  itself  reduced  to  the  following  alterna- 
tives. 

(1)  Having  no  concern  with  regard  to  the 
outcome  of  the  war,  it  would  trade  indifferently 
with  both  sides,  thus  aiding  them  to  prolong 
the  fight  at  its  own  profit.    It  cannot  serve  ef- 
fectively to  help  end  the  contest.    As  Lorimer 
pertinently  remarks,  it  "cannot  strike  up  the 
swords  of  the  combatants  by  putting  swords 
into  their  hands,  money  into  their  pockets,  or 
food  into  their  bodies."1 

(2)  By  reason  of  the  ability  of  one  belligerent 

1  Institutes,  II,  p.  135. 


132         INTERNATIONAL  REALITIES 

to  control  the  seas,  the  neutral  nation  must 
find  itself  reduced  to  the  role  of  supplying  only 
one  of  the  belligerents.  Whatever  it  supplies, 
whether  guns,  food,  or  money,  if  greatly  needed 
by  the  belligerent,  will  necessarily  be  of  the 
nature  of  munitions  of  war.  Under  such  cir- 
cumstances it  will  not  be  strange  if  the  other 
belligerent  quotes  reproachfully  the  words  of 
Demosthenes:  "That  person  whoever  he  be, 
who  prepares  and  provides  the  means  of  my 
destruction,  he  makes  war  upon  me,  though  he 
have  never  cast  a  javelin  or  drawn  a  bow 
against  me."1 

(3)  If  the  neutral  nation  finds  that  its  inter- 
ests and  sympathies  are  on  the  side  of  the  bellig- 
erent which  through  the  fortunes  of  war  has 
lost  control  of  the  seas,  it  may  find  itself  in  the 
extraordinary  situation  of  becoming  the  main 
support  of  the  very  side  it  desires  to  see  de- 
feated. 

(4)  If,  however,  its  interests  and  sympathies 
are  with  the  belligerent  which  controls  the  seas, 
the  neutral  nation  may  prefer  to  permit  that 
side  to  place  restrictions  of  perhaps  a  severe 
and  unprecedented  character  even  on  its  com- 
mercial intercourse  with  the  other  belligerent. 

1  Quoted  by  Phillimore  in  International  Law,  III,  p.  404. 


IGNOMINIOUS  NEUTRALITY          133 

In  this  case,  if  it  tolerates  under  the  thin  guise 
of  a  benevolent  neutrality  technical  violations 
of  neutral  privileges,  it  lays  itself  open  to  bitter 
and  vigorous  protests  by  the  other  belligerent 
against  its  patent  failure  to  preserve  strictly 
the  impartial  attitude  of  a  true  neutral. 

Such,  in  brief,  are  the  embarrassing  alterna- 
tives which  confront  a  nation  in  its  efforts  to 
preserve  neutrality  in  the  face  of  a  world-wide 
war  vitally  affecting  its  own  interests  as  well 
as  those  of  the  belligerents. 

It  would  seem  clear,  therefore,  in  whatever 
light  one  regards  neutrality,  whether  from  the 
point  of  view  of  the  rights  of  neutrals  or  the 
obligations  of  neutrals,  that  during  a  war  of 
great  proportions  and  significance  a  neutral 
nation  must  necessarily  find  itself  in  a  most 
trying  position.  It  cannot  possibly  escape 
some  of  the  direct,  as  well  as  the  incidental, 
hardships  of  war.  When  the  family  of  nations 
is  thrown  into  chaos,  all  its  members  must 
suffer  in  varying  degree. 


Under  such  circumstances,  it  must  again  be  True 

intere 
neutrals 


emphasized,  a  neutral  nation   may  find  itself  mtei 


goaded  by  its  immediate  or  its  ultimate  best 
interests  to  take  up  arms.     It  must  make  cer- 


134         INTERNATIONAL  REALITIES 

tain,  however,  that  it  fights  for  interests  of 
general  and  fundamental  importance,  not  for 
technical  rights  of  a  temporary  or,  possibly, 
doubtful  significance.  As  a  responsible  member 
of  the  family  of  nations  the  neutral  must  be 
sure  it  does  not  follow  a  policy  of  unenlight- 
ened self-interest  or  shirk  its  duty  to  seek  inter- 
national justice  and  order.  It  cannot  do  this 
merely  by  a  passive  attitude  of  neutrality.  It 
"cannot  strike  up  the  swords  of  combatants 
by  putting  swords  into  their  hands." 

Duty  of  It  would  seem  clear  that  under  modern  con- 

ditions of  easy  intercommunication,  of  the  in- 
timate interdependence  of  nations,  no  great 
nation  can  affect  a  selfish  indifference  to  the 
interests  of  other  nations,  whether  in  times  of 
peace  or  times  of  war.  The  breakdown  of  in- 
ternational order  must  vitally  affect  every 
nation.  The  existence  of  international  injustice, 
threats  of  aggression  lust  for  territory,  ambi- 
tions to  restrict  the  freedom  of  others,  con- 
tempt for  the  basic  principles  of  International 
Law:  all  this  must  arouse  any  self-respecting 
nation  from  a  state  of  callous  indifference.  The 
issues  of  a  great  war  are  of  too  deep  significance 
for  the  cause  of  international  order  and  world 


IGNOMINIOUS  NEUTRALITY          135 

peace  to  permit  of  real  neutrality.     As  West- 
lake  so  forcefully  points  out: 

There  is  no  general  duty  of  maintaining  the  condition   Westlake's 
of  neutrality.     On  the  contrary,  the  general  duty  of  every  views 
member  of  society  is  to  promote  justice  within  it,  and 
peace  only  on  the  footing  of  justice,  such  being  the  peace 
which  alone  is  of  much  value  or  likely  to  be  durable.  .  .  . 
We  may  sum  up  by  saying  that  neutrality  is  not  morally 
justifiable  unless  intervention  in  the  war  is  unlikely  to 
promote  justice,  or  could  do  so  only  at  a  ruinous  cost  to 
the  neutral.1 

Lorimer,  the  great  Scotch  publicist,  also  de- 
serves to  be  quoted  in  this  same  sense. 

When  a  question  has  arisen  between  two  States,  and,  Lorimer's 
above  all,  when  that  question  has  led  to  war,  the  object  views 
of  International  Law  is  not  to  ignore  the  war,  but  to  re- 
move the  cause  which  has  led  to  it;  and  this  involves 
giving  to  the  question,  not  the  cheapest  and  speediest, 
but  the  most  exhaustive,  and,  as  such,  the  most  perma- 
nent solution.  There  may  be  cases  in  which  that  object 
may  be,  or  may  seem  to  be,  attainable  by  neutrality  or  by 
intervention,  indifferently;  and  in  such  cases  an  option 
between  these  two  courses  will,  no  doubt,  be  jurally  open 
to  the  State  which  is  unable  to  decide  between  them. 
But  such  cases  must  always  be  rare;  and  the  acknowledged 
interdependence  of  states  in  our  own  time  tends  to  render 
them  rarer  and  rarer.2 

1  International  Law,  II,  p.  161.  2  Institutes,  II,  p.  125. 


136          INTERNATIONAL  REALITIES 

After  emphasizing  the  undoubted  tendency  of 
all  schemes  for  international  organization  and 
the  maintenance  of  world  peace  toward  in- 
tervention, Lorimer  goes  on  to  say: 

"Charity  begins  at  home,"  and  the  real  interests  of  his 
own  country  must  always  be  the  first  consideration  of  the 
statesman;  but  to  identify  a  policy  of  neutrality  with  the 
interests  of  international  peace  is  one  of  the  strangest  hal- 
lucinations that  ever  took  possession  of  clear-headed  men. 

Holding  views  of  this  character,  it  is  not 
strange  that  Lorimer  should  find  only  two 
grounds  of  justification  for  a  nation's  remaining 
neutral:  (i)  "Involuntary  ignorance,  or  intel- 
lectual and  consequent  moral  inability  to  par- 
ticipate in  belligerency";  (2)  "impotence  or 
physical  inability  to  participate  in  war." 

It  would  seem  as  if  Lorimer's  statements 
were  somewhat  too  sweeping,  and  fail  to  take 
into  account  localized  wars  between  remote 
nations  not  intimately  connected  with  other 
members  of  the  family  of  nations,  Bolivia  and 
Peru,  for  example.  The  neutrality  of  Sweden 
in  such  a  case  would  be  fully  justified.  But,  on 
the  whole,  it  still  remains  true  that  there  is  an 
increasing  realization  of  the  interdependence  of 
nations  which  renders  their  misfortunes  and 


IGNOMINIOUS  NEUTRALITY          137 

struggles  of  deep  concern  to  each  other.  A  re- 
markable manifestation  of  this  tendency  is  the 
proposed  "League  to  Enforce  Peace."  Viewed 
either  as  a  kind  of  international  executive  or  as 
a  disguised  form  of  alliance,  this  League  is  a 
bold  enunciation  of  the  duty  of  intervention  to 
preserve  peace.  It  is  a  frank  abandonment  of 
the  idea  of  neutrality.  It  is  an  admission  of  the 
truth  of  Westlake's  assertion  that  there  is  no 
duty  of  neutrality.  It  is  a  recognition  of  the 
fact  that  neutrality  is  usually  ignominious. 

By  way   of  summary,  then,  the    preceding  Summary 
considerations  concerning  the  larger  aspects  of 
neutrality  raised  by  the  question  of  the  sale 
of  munitions  of  war  by  a  neutral  would  seem 
to  warrant  the  following  conclusions: 

(1)  Neutrality,    like   war   itself,    is    entirely 
abnormal.     It  is  based  on  necessity,  which,  as 
Lorimer  points  out,  "is  not  a  source  of  normal 
rights  and  duties." 

(2)  Belligerent  interests  take  precedence  over 
neutral  interests.     If  a  nation  tries  to  remain 
neutral  it  finds  it  must  suffer  many  restrictions 
and  infringements  of  the  rights  of  peace. 

(3)  It  is  impossible  for  a  neutral  in  the  vary- 
ing fortunes  of  war  to  remain  the  friend  of  both 


138          INTERNATIONAL  REALITIES 

belligerents.  It  cannot  alter  its  course  accord- 
ing to  the  course  of  the  contest.  It  cannot  pre- 
serve a  perfect  neutrality.  It  cannot  observe  a 
"  benevolent "  neutrality  and  remain  truly  neu- 
tral. 

(4)  If  a  neutral  nation  does  not  wish  to  re- 
main in  a  humiliating  position  it  must  be  pre- 
pared to  fight  in  behalf  of  its  own  best  interests. 

(5)  If  a  neutral  nation  chooses  to  fight,  it 
must  be  certain  that  it  fights  on  the  side  of 
international  order  and  justice. 

(6)  It  is  the  positive  duty  of  a  nation  as  a 
member  of  the  family  of  nations  to  actively 
assist  in  the  maintenance  of  international  order 
and  justice.    A  neutral  nation  must  necessarily 
become  both  a  judge  and  a  party  in  a  world  war. 
Its  own  best  interests  require  that  it  should 
make  certain  that   such    a   war  ends   to   the 
advantage    of  the   whole    world.     Mediation, 
abstention  from  intervention,  indifferent  neu- 
trality are  of  slight  value,  or  of  no  value  at  all. 
The  self-respecting  nation,   capable  of  vision 
and  sacrifice,  and  willing  to  play  its  part  as  a 
world-power,  will  not  shrink  from  the  cost  and 
the  dangers  of  intervention.    Ignominious  neu- 
trality will  be  treated  with  just  contempt  as  a 
refuge  of  a  timid,  selfish  people,  faithless  to 


IGNOMINIOUS  NEUTRALITY          139 

their  duty  as  responsible  members  of  the 
great  community  of  nations.  They  will  justly 
deserve  some  of  the  scorn  visited  by  Dante  on 
"the  angels,  who  were  not  rebellious,  nor  faith- 
ful to  God,  but  were  for  themselves."1 

1  Inferno,  III,  37-39. 


CHAPTER  VII 
THE  DANGERS  OF  PACIFISM 

We  are  constantly  warned  of  the  menace  of 
Militarism,  but  we  hear  very  little  concerning 
the  dangers  of  Pacifism.  Peace  societies  en- 
dowed with  ample  funds  have  bombarded  the 
country  with  pamphlets,  addresses,  sermons, 
and  articles  in  the  press,  trying  to  prove  that 
the  Great  War  was  brought  on  by  Militarism. 
We  are  told  that  war  is  irrational,  ineffective, 
and  unjustified;  that  international  disputes  are 
capable  of  settlement  by  peaceful  means;  and 
that  nations  should  immediately  disarm.  So- 
cieties have  been  organized  to  counteract  the 
movement  in  favor  of  a  strong  national  defense. 
The  gospel  of  military  unpreparedness  is  being 
fervently  preached  in  order  to  avert  the  menace 
of  Militarism.  Like  the  youth  whom  the  poet 
counsels  to  bear  a  lily  in  his  hand  because 
"gates  of  brass  cannot  withstand  one  soft 
touch  of  that  magic  wand,"  we  are  counselled 
to  go  through  this  turbulent  world  of  interna- 
140 


THE  DANGERS  OF  PACIFISM         141 

tional  politics  without  weapons  of  defense  in 
order  to  demonstrate  the  purity  of  our  motives  ! 

It  is  not  always  easy  to  discover  precisely  Meaning  of 
what  pacifists  understand  by  Militarism.  To 
some  it  signifies  anything  relating  to  armaments 
and  armies;  or  it  means  large  armies  and  arma- 
ments. To  others  it  suggests  large  armies  of 
the  Prussian  kind.  Then  again  there  are  those 
to  whom  it  connotes  the  political  philosophy 
which  believes  in  the  efficacy  of  force  [to  for- 
ward and  protect  the  vital  interests  of  the  State. 
In  general  the  pacifists  unite  in  looking  upon 
Militarism  as  a  horrible  monster  that  is  more 
likely  to  control  than  serve  the  State.  The 
Army  and  Navy  are  to  be  regarded  as  ever  a 
potential  menace. 

If  Militarism  is  vaguely  understood,  so  also  Meaning  of 
Pacifism  is  in  great  need  of  clearer  definition.  3 
There  are,  of  course,  the  extreme  pacifists  who 
hold  that  wars  are  never  justified;  that  "there 
never  was  a  good  war  or  a  bad  peace";  and 
who    agree    with    Norman    Angell    that    wars 
never  pay.     They  believe  that  war  should  be 
avoided    at    any   cost;   and   that   "peace   and 
righteousness"    are    synonymous.     There    are 
other  pacifists  who  fervently  believe  that  in- 


142         INTERNATIONAL  REALITIES 

ternational  disputes  can  be  satisfactorily  set- 
tled by  peaceful  means;  they  have  great  faith 
in  Arbitration,  in  courts  of  arbitral  justice,  and 
ultimately  in  an  international  police  force.  To 
such  optimists  all  that  is  needed  is  a  common 
agreement  among  nations  to  disarm,  and 
abandon  the  "irrational"  use  of  war.  There 
is  still  another  group  of  pacifists  who  believe 
that  the  peaceful  settlement  of  international 
disputes  is  preferable  to  that  of  war,  but  are 
under  no  illusions  concerning  the  defective 
character  of  the  means  of  peaceful  settlement 
now  available.  They  are  willing  to  aid  in  every 
possible  way  the  cause  of  world-peace,  but  in- 
dulge in  no  sentimental  notions  in  respect  to 
disarmament.  They  see  that  international 
organization,  like  everything  else  in  nature,  is 
a  process  of  slow  evolution.  They  hold  that 
the  problem  is  mainly  the  stupendous  one  of 
"the  substitution  of  law  for  war." 

When  we  speak  of  the  dangers  of  Pacifism, 
therefore,  we  do  not  have  in  mind  this  last 
category  of  pacifists;  we  have  in  mind  those 
other  pacifists  who  believe  that  war  is  never 
justified,  and  those  who  believe  that  adequate 
means  for  the  settlement  of  international  dis- 
putes are  now  at  hand.  It  is  not  my  purpose 


THE  DANGERS  OF  PACIFISM         143 

to  speak  with  scorn  of  the  aims  and  accomplish- 
ments of  these  pacifists.  The  world  has  great 
need  of  idealists,  even  of  the  impractical  vari- 
ety. But  idealists  of  the  impractical  variety 
may  easily  bring  a  good  cause  into  disrepute 
and  create  a  worse  condition  of  affairs.  It  is 
therefore  of  immense  importance,  at  this  crisis 
in  the  world's  history,  that  we  turn  for  a  moment 
from  the  denunciation  of  Militarism  and  try  to 
consider  in  a  detached  way  the  possible  dangers 
of  Pacifism. 

There  exists  a  danger  that  Pacifism  will  dis-  Pacifism 
credit    International    Law    by    attempting    to 


submit  it  to  a  strain  it  is  not  yet  prepared  to  international 
bear.  Through  a  false  analysis  of  the  causes 
of  war,  a  failure  to  understand  world  politics, 
and  a  complete  misunderstanding  of  the  na- 
ture, functions,  and  power  of  Arbitration,  the 
pacifists  are  likely  to  bring  International  Law 
into  disrepute.  They  do  not  seem  to  realize 
the  crucial  fact  that  there  are  questions  of  a 
non-judicial  character  which  International  Law 
cannot  decide.  If  Diplomacy  can  find  no  solu- 
tion, then  war  alone  can  decide  questions  of 
this  character. 

Pacifists  do  not  see  that  arbitral  tribunals 
cannot   indulge   in   judicial   legislation   where  scope 


144          INTERNATIONAL  REALITIES 

International  Law  may  be  defective.  Odious 
as  judicial  legislation  is  in  national  courts,  it 
is  infinitely  more  so  in  international  courts 
which  by  their  nature  cannot  reflect  common 
conceptions  of  rights  and  obligations.  Work  of 
this  momentous  character  can  be  accomplished 
only  by  a  properly  empowered  international 
Congress. 

In  exalting  Arbitration  as  an  efficient  sub- 
stitute for  war,  the  pacifists  do  not  seem  to 
appreciate  the  fact  that  nations  cannot  refer 
disputes  to  Arbitration  without  restrictions  on 
the  exact  powers  of  the  tribunals.  In  the 
absence  of  an  International  Law  enacted  by 
common  consent  which  may  be  confidently 
invoked  in  all  disputes,  nations  are  often  com- 
pelled to  prescribe  the  law  and  procedure  to 
be  observed  in  each  arbitration.  The  Alabama 
Arbitration  illustrates  this  fact.  The  protocol 
of  submission  practically  settled  the  contro- 
versy between  Great  Britain  and  the  United 
States.  The  triumph  was  one  of  Diplomacy 
rather  than  of  Arbitration.  If  arbitral  tribunals 
are  not  free  to  apply  the  law  in  each  case,  they 
are  likewise  not  free  to  render  decisions  of  a 
punitive  nature,  except  to  award  damages  in 
accordance  with  the  protocol  defining  their 


THE  DANGERS  OF  PACIFISM         145 

powers.  Nations  would  resort  with  extreme 
reluctance  to  Arbitration  for  purposes  of  puni- 
tive justice.  Courts  cannot  punish  unless  they 
have  a  generally  accepted  law  to  administer, 
and  have  the  power  to  enforce  their  decrees. 

It  is  not  generally  appreciated  that  Arbitra-  Arbitration  as 
tion  is  essentially  nothing  more  than  a  useful  Diplomacy*  * 
helpmate  to  Diplomacy.  Nations  go  to  war 
only  over  issues  of  vital  importance  which  In- 
ternational Law  is  powerless  to  settle.  They 
resort  to  Arbitration  only  over  matters  not 
worth  fighting  about  which  Diplomacy  has 
been  unable  to  adjust.  The  wars  and  arbitra- 
tions of  the  last  fifteen  years  since  the  first 
Hague  Peace  Conference  amply  demonstrate 
this  fact.  In  claiming,  therefore,  too  much  for 
Arbitration  the  pacifists  are  trying  to  put  on  it 
a  strain  it  never  was  meant  to  bear.  They  are 
bringing  International  Law  into  disrepute  by 
asking  it  to  treat  situations  it  is  entirely  in- 
competent to  remedy,  and  the  result  is  likely 
to  be  a  discouraged  reaction  and  cynical  revul- 
sion to  redress  of  wrongs  by  force  rather  than 
by  law. 

In  insisting  too  strenuously  on  its  programme 
of  Arbitration  and  disarmament,  Pacifism  has 


146 


INTERNATIONAL  REALITIES 


Arbitration 
propaganda 
embarrassing 
to  Great 
Powers 


European 
problems 


America  not 
mediator  of 
Europe 


aroused  the  distrust  of  the  Great  Powers.  They 
are  quite  unwilling,  naturally,  to  be  placed  in 
the  embarrassing  situation  of  appearing  to 
foster  ulterior  ends  of  an  aggressive  character 
simply  because  they  are  unable  to  agree  to 
arbitrate  unreservedly  all  disputes  or  are  un- 
prepared to  disarm. 

American  pacifists  seem  to  forget  that  Eu- 
rope has  inherited  from  the  Peace  of  West- 
phalia, from  the  Treaty  of  Vienna,  from  the 
Franco-Prussian  War,  from  the  Congress  of 
Berlin,  and  other  conferences  distressing  ills 
that  the  Great  War  may  or  may  not  remedy. 
It  is  possible  that  the  map  of  Europe  may  be 
remade  in  accordance  with  the  fundamental 
rights  and  the  vital. interests  of  all  the  various 
peoples  concerned.  A  fine  spirit  of  justice  on 
the  part  of  the  conqueror  may  bring  about  re- 
sults calculated  to  insure  peace  for  many  years 
to  come.  A  bitter  spirit  of  retribution,  on  the 
other  hand,  will  surely  sow  the  seeds  of  future 
wars. 

American  pacifists  are  in  danger  of  seriously 
discrediting  the  cause  of  peace  if  they  attempt 
in  any  way  to  bring  pressure  to  bear  on  the 
European  Powers  and  intrude  as  mediators  in 
their  political  problems.  These  problems  are 


THE  DANGERS  OF  PACIFISM         147 

of  an  intensely  practical  nature  and  must  be 
solved  by  statesmen,  not  by  impractical  ideal- 
ists. The  United  States  must  let  Europe  settle 
its  own  problems.  The  policy  of  non-interven- 
tion in  the  political  affairs  of  Europe,  as  laid 
down  by  Washington,  is  an  extremely  prudent 
policy  to  observe  at  this  crisis. 

By  stressing  so  insistently  the  subjects  of  Real  task 
disarmament  and  Arbitration,  Pacifism  is  dis- 
tracting attention  and  energies  from  the  real 
work  to  be  done.  That  task  is  the  creation  of 
a  body  of  International  Law  to  be  formally  ac- 
cepted by  all  nations  as  the  solid  basis  of  their 
relations.  It  is  futile  to  claim  that  such  a 
body  of  law  already  exists.  Apart  from  the 
Convention  for  the  Pacific  Settlement  of  Inter- 
national Disputes,  the  only  convention  creating 
law  to  govern  the  peaceful  intercourse  of  States 
agreed  upon  by  the  Hague  Peace  Conferences  of 
1899  and  1907  was  on  the  subject  of  The  Re- 
covery of  Contract  Debts.  Consecrating  as  it 
does  the  vicious  principle  of  the  sanction  of 
force  in  collecting  debts,  and  accepted  only 
with  reservations  by  a  considerable  number  of 
States,  the  value  of  this  single  piece  of  inter- 
national legislation  is  extremely  questionable. 


148 


INTERNATIONAL  REALITIES 


International 

legislation 

needed 


Problems  of 

Western 

Hemisphere 


Had  the  Hague  Peace  Conferences  concen- 
trated their  efforts  on  the  serious  task  of  creating 
a  law  of  peace  rather  than  rules  of  war  destined 
to  be  cynically  disregarded  under  the  plea  of 
necessity,  they  might  have  materially  advanced 
the  cause  of  World  Peace.  Among  the  vari- 
ous international  statutes  requiring  enactment 
may  be  mentioned  the  following:  The  rights  of 
foreign  creditors  and  the  procedure  to  be  fol- 
lowed in  the  prosecution  of  their  claims.  This 
procedure  should  be  clearly  defined.  There 
should  be  an  international  bankruptcy  law  to 
govern  the  case  where  a  State  is  unable  to  meet 
its  external  obligations.  There  is  need  of  an 
International  Law  of  torts  to  enable  aliens  to 
obtain  damages  for  illegal  acts  of  the  State. 
The  rights  of  aliens  in  times  of  civil  disturbance 
should  be  determined  by  international  legisla- 
tion. There  are  also  many  questions  classified 
under  the  head  of  International  Private  Law, 
or  Conflict  of  Laws,  such  as  marriage,  divorce, 
guardianship,  inheritance,  and  domicile,  which 
should  properly  be  regulated  by  international 
agreement. 

Questions  of  the  foregoing  character  are  of 
vital  concern  to  the  nations  of  this  Western 
Hemisphere.  If  Europe  has  its  own  difficult 


THE  DANGERS  OF  PACIFISM         149 

problems  to  solve,  America  also  has  its  own 
distinctive  problems.  If  Pacifism  would  con- 
centrate on  this  particular  field  of  international 
politics  instead  of  scattering  its  energies  on 
vast  world  projects  of  a  more  or  less  chimerical 
character,  it  might  accomplish  practical  results 
of  great  value.  The  pacifists  in  America  would 
do  well  to  encourage  the  creation  of  a  body  of 
law  to  govern  the  relations  of  the  States  included 
in  the  Pan-American  Union,  and  thus  eliminate 
many  occasions  for  misunderstanding  and  es- 
trangement. They  might  lead  in  a  movement 
to  transform  the  Pan-American  Union  into  a 
congress  empowered  to  deal  not  only  with  legal 
questions,  but  also  to  legislate  concerning  ques- 
tions of  a  political  character  affecting  the  mu- 
tual interests  of  all.  They  might  even  achieve 
on  this  hemisphere  the  ideal  apparently  not 
within  reach  in  Europe,  namely,  the  establish- 
ment of  a  real  Court  of  Justice  properly  sup- 
ported by  a  Pan-American  police  force.  Such  are 
some  of  the  practical  tasks  which  Pacifism  might 
help  accomplish  were  it  not  so  fatuously  absorbed 
in  the  pursuit  of  impractical  world  projects. 

Pacifism  is  fostering  the  spirit  of  cowardice  Dangers  of 
and  a  materialistic  conception  of  life.     It  has  pac 


150         INTERNATIONAL  REALITIES 

Pacifism  stressed  so  vividly  the  horrors  of  war,  has  so 
cowardice  and  effectively  obscured  the  heroic,  idealistic  aspects 
materialism  of  war,  and  insisted  so  strongly  on  the  futility 
of  war,  that  men  are  fast  coming  to  believe  that 
"peace  at  any  price"  is  the  best  motto  for  a 
nation.  It  matters  not  what  interests  may  be 
at  stake,  even  independence  itself;  the  great 
object  of  a  foreign  policy  is  to  avoid  war !  For 
the  followers  of  Norman  Angell  everything  is 
reduced  practically  to  a  matter  of  material 
calculation.  Wars  never  pay,  they  say.  A 
thousand  men  must  not  be  "sacrificed"  to 
protect  a  hundred  fellow  countrymen  in  danger 
of  torture  and  death  at  the  hands  of  uncivi- 
lized ruffians.  According  to  such  a  material- 
istic theory  a  man  of  genius  should  resist  the 
impulse  to  save  a  drowning  child  because  his 
own  life  is  of  greater  value  to  the  community. 
The  chivalrous,  self-denying,  generous  spirit 
is  not  to  be  fostered  when  men  of  one's  own 
blood  appeal  for  help  from  abroad  !  The  peo- 
ples of  the  Balkans  should  never  "sacrifice" 
lives  for  the  sake  of  their  brothers  under  for- 
eign domination ! 

Pacifism  Pacifism  has  inculcated  such  an  exaggerated 

sjrirituai  conception  of  the  value  of  life  as  to  treat  it  as 

values  something  immortal,  something  which  must  be 


THE  DANGERS  OF  PACIFISM         151 

preserved.  It  is  not  something  to  be  freely  laid 
down  in  accordance  with  the  precepts  of  Chris- 
tianity !  Surely  this  is  to  lose  sight  almost 
completely  of  the  spiritual  values.  In  failing 
to  glory  in  the  magnificent  idealism  of  the  sol- 
diers of  all  the  opposing  armies  now  in  combat 
who  are  joyfully  giving  their  lives  for  something 
not  themselves,  who  are  inspired  by  a  trans- 
cendent national  ideal,  Pacifism  is  leading  the 
rising  generation  to  worship  at  a  sordid,  selfish 
shrine.  It  is  fostering  a  spirit  of  cowardice  of  a 
peculiarly  abhorrent  kind. 

It  is  now  the  fashion  among  the  pacifists  to  Pacifism 
decry  the  spirit  of  nationalism  as  something  Nationalism 
narrow,  provincial,  and  antagonistic  to  the 
growth  of  the  sentiment  of  international  friend- 
liness. With  Doctor  Johnson  they  are  dis- 
posed to  regard  patriotism  as  "the  last  refuge 
of  scoundrels."  They  look  with  alarm  on  the 
recrudescence  of  nationalism  throughout  the 
world,  and  argue  that  international  good-will 
and  peace  depend  on  the  obliteration  of  national 
boundaries.  This  argument  was  much  used  be- 
fore the  present  war  by  the  Socialists  and  the 
Industrial  Workers  of  the  World,  who  claimed 
that  the  international  solidarity  of  the  work- 
ing men  of  all  nationalities  would  effectively 


152          INTERNATIONAL  REALITIES 

prevent  wars.  Since  the  participation  of  the 
German  Socialists  in  the  aggression  against 
their  brothers  in  Belgium,  however,  this  argu- 
ment has  had  a  considerably  lessened  value. 

Nationalism          In  preaching  loyalty  to  the  rather  vague  sen- 
stood  timent  of  international  brotherhood,  pacifism 

would  seem  to  fail  to  appreciate  the  true  value 
of  nationalism.  It  forgets  that  loyal  devotion, 
like  true  charity,  must  first  begin  at  home. 
One  must  show  brotherly  love  to  the  man  next 
to  him,  whether  in  his  own  home  or  his  neigh- 
bor's, before  he  can  talk  about  international 
brotherhood.  The  pacifists  do  not  seem  to 
realize  that  patriotism,  like  family  loyalty,  does 
not  mean  indifference  to  the  interests  of  others. 
They  err  with  the  Socialists  in  ignoring  the 
positive  necessity  of  national  units  of  organiza- 
tion in  order  to  deal  effectively  with  problems 
of  education,  religion,  philanthropy,  and  eco- 
nomic administration.  They  also  would  appear 
to  ignore  the  truth  of  the  thought  suggested  by 
Lorimer: 

May  it  not  be  that  under  these  diverse  ethnical  impulses 
diverse  types  of  nationality  must  necessarily  grow  up,  and 
that  these,  though  permanently  dissimilar,  may  be  of 
equal  ethical  value  with  that  which  our  ethnical  genius 
has  imposed  upon  us  (Great  Britain),  and  equally  entitled 


THE  DANGERS  OF  PACIFISM          153 

to  international  recognition  by  us  and  the  other  nations 
of  Western  Europe  ?  l 

It  would  seem  evident  that  the  world  has  Need  of 
need  of  the  free  play  of  individuality  among 
nations  as  well  as  among  men;  and  that  there 
is  likewise  the  same  need  of  mutual  forbear- 
ance and  respect.  Pacifism,  therefore,  in  belit- 
tling the  sentiment  of  nationality,  the  loyalty 
of  patriotism,  is  guilty  of  the  grave  offense  of 
seeking  to  extirpate  a  sentiment  capable  of 
noble  deeds,  without  supplying  an  adequate 
substitute.  One  cannot  expect  youths  who  are 
incapable  of  enthusiastic  devotion  to  the  State 
to  render  very  much  service  to  a  vague,  in- 
tangible World-State  which  has  not  yet  come 
into  being.  Never  was  idealism  so  infelicitous 
as  in  this  intolerance  of  patriotism. 

The  severest  indictment,  however,  to  be  Pacifism  as  a 
brought  against  Pacifism  is  that  it  may  be  a 
contributing  cause  of  war.  The  most  tragic 
fact  disclosed  by  the  British  White  Papers  in 
respect  to  the  diplomatic  negotiations  leading 
up  to  the  Great  War  is  that  Pacifism  in  Eng- 
land had  practically  paralyzed  Sir  Edward 
Grey's  efforts  in  behalf  of  peace.  When  ur- 
gently pressed  by  Russia  and  France  to  make 

1  Institutes,  I,  p.  94. 


154         INTERNATIONAL  REALITIES 

clear  to  Germany  that  England  would  not  keep 
out  of  a  Continental  war,  Sir  Edward  was 
compelled  to  maintain  a  non-committal  atti- 
tude which,  as  a  matter  of  fact,  was  altogether 
inconsistent  with  England's  obligations  and 
interests.  Pacifism  had  gained  such  a  hold 
throughout  England  that  the  Government  had 
neither  the  support  of  public  opinion  nor  of  the 
Liberal  Party,  until  the  actual  violation  of 
Belgian  territory.  Within  the  Cabinet  itself 
were  such  strong  and  extreme  pacifists  as  Lord 
Morley  and  Lord  Haldane,  the  latter  of  whom 
after  his  visits  to  Germany  was  obsessed  by 
belief  in  the  force  of  international  "  Sittlichkeit" 
and  the  conviction  that  war  between  the  two 
countries  was  "unthinkable."  The  undis- 
guised surprise  and  fury  of  Germany  on  learn- 
ing that  England  at  the  last  hour  was  really 
determined  to  fight,  is  striking  justification  of 
the  belief  held  by  Russia  and  France  that  Ger- 
many would  have  avoided  a  general  European 
war  once  it  was  clear  that  England  would  also 
be  compelled  to  enter.  The  failure  of  Sir  Ed- 
ward Grey  to  make  this  fact  explicitly  clear  to 
Germany  must  be  traced,  not  to  Machiavellian 
motives — as  Shaw  with  ingenious  effrontery 
would  try  to  prove — but  to  the  unwillingness 


THE  DANGERS  OF  PACIFISM         155 

and  inability  of  Englishmen  to  realize  the  im- 
minent danger  of  war.  This  unwillingness  and 
inability  would  seem  clearly  due  to  the  insidi- 
ous propaganda  of  such  well-meaning  idealists 
as  Norman  Angell  and  Lord  Haldane.  So  in- 
fected had  England  become  with  the  notion 
that  war  with  Germany  was  as  impossible  as  it 
was  irrational,  the  pacifists  were  able  to  defeat 
the  heroic  attempts  of  Earl  Roberts  to  secure 
an  adequate  military  organization  for  the  de- 
fense of  the  Empire. 

A  peace  society  in  America  has  circulated  Pacifism 
with  evident  approval  the  speech  of  a  British 
member  of  Parliament  in  opposition  to  the  in- 
crease of  the  British  Army  so  eloquently  urged 
by  Earl  Roberts.  One  would  think  that  when 
this  member  of  Parliament  contemplates  the 
fearful  price  England  has  had  to  pay  for  its 
military  unpreparedness  he  would  hang  his 
head  in  shame  and  bitter  remorse.  Whatever 
the  feelings  of  personal  responsibility  this  mem- 
ber may  have  experienced,  it  is  clear  that  many 
pacifists  in  America  are  willing  to  imitate  his 
example,  as  is  evidenced  by  their  organizing 
a  campaign  of  opposition  to  the  movement  to 
strengthen  the  arms  of  defense  of  the  United 
States.  Unable  to  understand  the  deeper 


156          INTERNATIONAL  REALITIES 

causes  of  war,  or  to  read  aright  the  warnings 
of  the  present  catastrophe,  they  hold,  with 
arguments  which  defy  ordinary  standards  of 
logic,  that  inasmuch  as  military  preparedness 
failed  to  avert  war  in  Europe,  the  United  States 
should  now  try  military  unpreparedness  !  They 
insist  that  we  should  demonstrate  the  right- 
eousness of  our  own  motives  by  standing  de- 
fenseless in  the  defense  of  Peace ! 

Conclusion  If  it  were  simply  a  matter  of  demonstrating 

that  Pacifism  is  in  error  in  its  fundamental 
premises  and  deductions,  one  would  not  need 
to  feel  any  great  concern.  The  world  is  accus- 
tomed and  friendly  to  impractical  reformers. 
But  when  Pacifism  with  the  support  of  ample 
funds  and  influential  leaders  of  public  opinion 
is  able  to  carry  on  a  propaganda  of  such  a  na- 
ture as  to  constitute  itself  a  contributing  cause 
of  war,  it  is  something  to  be  viewed  with 
genuine  apprehension.  Statesmen  are  occasion- 
ally guilty  of  errors  of  judgment  and  criminal 
negligence  in  respect  to  the  vital  interests  of 
the  State.  Responsibility  can  be  definitely 
placed  on  them,  and  they  have  a  heavy  burden 
to  carry  to  their  graves.  This  is  not  true  of 
the  idealist  who,  lacking  the  steadying,  sober 


THE  DANGERS  OF  PACIFISM         157 

influence  of  responsibility,  would  attempt  to 
manage  the  affairs  of  nations.  With  a  disre- 
gard of  consequences  which  would  almost  be 
treason  on  the  part  of  statesmen,  the  idealist 
would  willingly  endanger  the  safety  of  his 
country  for  the  sake  of  the  problematical  tri- 
umph of  his  ideals.  It  is  earnestly  to  be  hoped 
that  the  pacifists  may  be  led  to  realize  the 
dangers  of  their  propaganda,  and  that  the 
United  States  may  be  spared  the  terrible  mis- 
fortunes which  have  come  upon  Europe. 


CHAPTER  VIII 
PAN-AMERICANISM 

Misdirected  Since  the  Czar  of  Russia  took  the  initiative 
in  summoning  the  first  Peace  Conference  at 
The  Hague  in  1899  the  world  has  suffered  from 
an  almost  unintermittent  series  of  wars  and 
revolutions.  A  dispassionate  consideration  of 
this  turbulent  state  of  affairs  should  cause  the 
friends  of  peace  to  think  soberly.  We  cannot, 
with  justice  or  reason,  be  undiscriminating  in 
placing  the  blame  for  these  harrowing  events. 
We  ought  now  to  be  conscious  of  the  fact  that 
a  splendid  amount  of  idealism  has  been  sadly 
misdirected.  We  have  urged  disarmament 
when  nations  knew  that  it  was  impractical,  and 
that  to  do  so  would  invite  disaster.  We  have 
urged  Arbitration,  as  a  general  panacea  for  in- 
ternational ills,  when  it  should  have  been  evi- 
dent that  Arbitration  has  its  most  decided 
limitations  and  is  incapable  of  adjusting  mo- 
mentous questions  of  a  political,  non-judicial 
character.  We  have  sought  to  establish  courts 

158 


PAN-AMERICANISM  159 

of  justice  when  there  was  little  or  no  law  for 
the  courts  to  administer.  We  have  pleaded  for 
international  order  when  there  was  no  force  to 
keep  order.  We  have  blindly  accepted  the  in- 
tolerable international  status  quo  with  no 
thought  of  redressing  the  wrongs  of  outraged 
nationalities.  We  have  considered  peace  as 
something  tangible  to  be  attained  through 
agreement,  and  have  failed  to  realize  that 
peace  is  a  state — a  resultant  of  actual  fluctuat- 
ing conditions  which  in  themselves,  in  last 
analysis,  depend  internationally,  as  within  any 
community,  on  the  intelligence,  morality,  and 
sense  of  justice  of  the  average  man. 


The  great  definite  task  we  have  particularly  The 

Ame 
problem 


ignored  in  our  enthusiasm  for  world  peace  is  Ame 


that  of  peace  and  unity  on  this  American  con- 
tinent. Statesmen  like  Elaine  have  realized 
the  importance  of  this  magnificent  task.  Many 
have  spoken  and  written  in  favor  of  a  "better 
understanding,"  of  the  "need  of  closer  rela- 
tions," etc.,  between  the  nations  of  this  hemi- 
sphere. The  Pan-American  Union  was  organized 
for  this  specific  purpose,  and  is  now  enthroned 
in  a  beautiful  palace  in  Washington.  But  what 
is  the  practical  result  of  all  this  agitation  and 


160         INTERNATIONAL  REALITIES 

organization  ?  Not  much  more,  it  would  ap- 
pear, than  flowery  sentiment  and  the  awaken- 
ing of  keener  interest  on  the  part  of  business 
men  in  openings  for  trade  in  Central  and  South 
America.  Diplomatically,  we  seem  hardly  any 
nearer  a  closer  union  between  the  nations  of 
this  continent  than  twenty-five  years  ago.  In 
some  ways,  we  would  seem  further  away,  owing 
to  certain  incidents  which  have  aroused  mis- 
trust and  fear  concerning  the  policy  and  aims 
of  the  United  States.  Particularly  to  be  re- 
gretted are  the  attempts  of  "Dollar  Diplo- 
macy" under  President  Taft  "to  substitute 
dollars  for  bullets";  the  Mexican  policy  of 
President  Wilson,  and  his  endeavor  to  define 
the  Monroe  Doctrine  as  something  quite  dis- 
tinct from  Pan-Americanism — as  the  unique 
possession  of  the  United  States,  which  permits 
us  to  exert  a  kind  of  moral,  and  even  political, 
surveillance  over  the  domestic  affairs  of  the 
other  Republics.  They  have  been  led  to  ap- 
prehend that  they  are  not  free  to  grant  foreign 
concessions  or  change  their  Governments  ac- 
cording as  they  may  desire. 

FaUure  of  This  brings  us  to  a  consideration  of  the  main 

p^-^erican  reasons  Wn7  it  is  that  the  idea  of  Pan-American 
policy  unity  has  failed  as  yet  to  attain  any  practical 


PAN-AMERICANISM  161 

results.  First  of  all — and  primarily — the  na- 
tions to  the  south  have  been  unable  to  accept 
with  enthusiasm  the  idea  of  Pan-American 
unity  because  of  startling  extensions  and  in- 
terpretations of  the  Monroe  Doctrine.  Orig- 
inally accepted  with  gratitude  and  joy,  this 
Doctrine  has  lately  awakened  keen  distrust  and 
fear.  It  has  even  been  characterized  as  an 
"obsolete  shibboleth,"  as  utterly  abhorrent  to 
the  peoples  of  these  countries.  They  have 
understood  it  of  late  as  an  egotistic  assertion 
by  the  United  States  of  a  right  of  hegemony, 
and  of  intervention  in  their  affairs.  So  strong 
has  this  sentiment  become,  that  there  are  clear 
indications  of  a  desire  to  form  alliances  to 
counterbalance  this  apparent  assumption  of 
overweening  lordship. 

Secondly,  there  is  a  keen  appreciation  among  Need  of  law 
these  nations  of  the  supreme  need  of  the  crea- 
tion  of  a  body  of  law  to  govern  the  interna- 
tional relations  of  the  States  of  this  hemisphere. 
Arbitration  without  law  is,  with  reason,  of  little 
value  in  their  eyes.  From  their  point  of  view 
there  can  be  no  genuine  unity  worthy  of  respect 
that  is  not  founded  on  common  conceptions  of 
rights  and  obligations.  They  realize  better 
than  ourselves  the  obstacles  to  be  overcome  in 


162         INTERNATIONAL  REALITIES 

this  regard.  They  ask  not  for  leadership.  They 
ask  for  equality  before  law.  And  they  ask  for 
law  to  which  they  have  previously  given  their 
positive  assent.  Until  that  law  and  that  equal- 
ity exist,  they  refuse  to  accept  the  dictation  of 
the  United  States,  no  matter  how  altruistic  and 
disinterested  that  dictation  may  be. 

The  Monroe  The  first  and  the  main  obligation  of  the 
interpreted  by  United  States  is  either  to  abandon  the  Monroe 
Mr.  Root  Doctrine  or  to  formulate  it  anew  in  such  terms 
as  will  obtain  the  unhesitating  adhesion  and 
the  enthusiastic  support  of  the  other  States  of 
the  Pan-American  Union.  To  abandon  this 
ancient  bulwark  of  independence  would  seem 
folly  if  the  objections  are  not  against  the  Doc- 
trine itself,  but  are  based,  as  would  appear,  on 
recent  extraordinary  misinterpretations  of  it. 
Senator  Root,  in  his  Presidential  address  at  the 
Annual  Meeting  of  the  American  Society  of 
International  Law  in  Washington,  in  April, 
1914,  came  very  close  to  formulating  the  Mon- 
roe Doctrine  in  terms  which  should  be  accept- 
able to  all  the  States  of  this  continent  when  he 
said: 

The  Monroe  Doctrine  does  not  assert  or  imply  any 
right  on  the  part  of  the  United  States  to  impair  or  con- 
trol the  independent  sovereignty  of  any  American  State. 


PAN-AMERICANISM  163 

In  the  lives  of  nations,  as  of  individuals,  there  are  many 
rights  unquestioned  and  universally  conceded.  The  as- 
sertion of  any  particular  right  must  be  considered,  not  as 
excluding  all  others  but  as  coincident  with  all  others  which 
are  not  inconsistent.  The  fundamental  principle  of  In- 
ternational Law  is  the  principle  of  independent  sover- 
eignty. Upon  that  all  other  rules  of  International  Law 
rest.  That  is  the  chief  and  necessary  protection  of  the 
weak  against  the  power  of  the  strong.  Observance  of 
that  is  the  necessary  condition  to  the  peace  and  order  of 
the  civilized  world.  By  the  declaration  of  that  principle 
the  common  judgment  of  civilization  awards  to  the 
smallest  and  weakest  state  the  liberty  to  control  its  own 
affairs  without  interference  from  any  other  Power,  how- 
ever great. 

The  Monroe  Doctrine  does  not  infringe  on  that  right. 
It  asserts  the  right.  The  declaration  of  Monroe  was 
that  the  rights  and  obligations  of  the  United  States  were 
involved  in  maintaining  a  condition,  and  the  condition  to 
be  maintained  was  the  independence  of  all  the  American 
countries.  It  is  "the  free  and  independent  condition 
which  they  have  assumed  and  maintained"  which  is  de- 
clared to  render  them  not  subject  to  future  colonization. 
It  is  "the  governments  who  have  declared  their  inde- 
pendence and  maintained  it  and  whose  independence  we 
have  on  great  consideration  and  on  just  principles  ac- 
knowledged" that  are  not  to  be  interfered  with. 

In  the  course  of  this  address  Senator  Root 
also  said:  "The  Doctrine  is  not  International 
Law,  but  it  rests  upon  the  right  of  self-protec- 
tion and  that  right  is  recognized  by  Interna- 


1 64         INTERNATIONAL  REALITIES 

tional  Law.  The  right  is  a  necessary  corollary 
of  independent  sovereignty."  It  is  true  that 
Senator  Root  would  restrict  the  scope  of  the 
Doctrine  to  the  assertion  of  the  right  of  the 
United  States,  or  Brazil,  or  Peru,  to  adopt 
proper  measures  of  self-protection  that  each 
might  deem  necessary.  According  to  Mr. 
Root,  it  would  have  no  communal  significance. 
It  would  remain  a  declaration  of  national 
policy,  not  the  assertion  of  a  fundamental 
principle  of  International  Law. 

The  Monroe         It  would  seem,  however,  as  if  Mr.  Root,  in  a 

Doctrine  a  •     i      »  IM  r 

sanction  of  natural  desire  to  reserve  liberty  01  action  to 
international  tjie  United  States,  was  resorting  to  a  nicety  of 
argument  not  devoid  of  inconsistency.  One 
may  well  question  the  alleged  "  right "  of  a 
state  such  as  Morocco,  for  example,  to  exist, 
but  once  a  group  of  nations  have  explicitly,  or 
impliedly,  conceded  to  each  other  a  qualified, 
or  unqualified,  right  of  existence — as  would 
seem  to  be  the  case  on  this  continent — a  dec- 
laration on  their  part  to  stand  together  in  mu- 
tual self-defense  would  appear  to  be  the  most 
solemn  assertion  of  International  Law.  With- 
out accepting  in  all  their  possible  implications 
Mr.  Root's  theories  of  "  Sovereignty,"  the  Mon- 


PAN-AMERICANISM  165 

roe  Doctrine  in  the  light  of  his  own  definition 
would  thus  seem  to  provide  on  this  continent 
a  definite  sanction  of  International  Law  that 
has  been  lamentably  lacking  in  Europe,  where 
the  rights  of  smaller  nations  have  been  sub- 
servient to  the  archaic  and  cynical  doctrine  of 
the  "  Balance  of  Power." 

It  should,  of  course,  be  recognized  that  every  The  Monroe 

•  i  •        ir      i        Doctrine  a 

nation  must  necessarily  reserve  to  itselr  the  pa 
right  to  liberty  of  action  in  certain  situations  doctrine 
of  near-neighborhood  interest,  such  as  confronts 
the  United  States  on  its  Mexican  frontier.  We 
should  not  confuse  questions  of  this  nature 
with  the  Monroe  Doctrine  itself.  With  this 
reservation  in  mind,  we  should  be  prepared  to 
abandon  the  Monroe  Doctrine  as  an  arrogant 
assertion  of  national  policy  and  restate  it  in 
broad  general  terms  as  the  defense  of  a  funda- 
mental principle  of  International  Law.  There 
would  then  exist  no  reason  why  all  the  other 
nations  of  the  Pan-American  Union  should 
not  enthusiastically  support  this  Pan-American 
Doctrine.  We  would  have  thus  removed  the 
natural  mistrust  and  fear  that  the  policy  and 
acts  of  the  United  States  have  so  unfortunately 
aroused  of  late. 


i66         INTERNATIONAL  REALITIES 

The  creation  Having  reached  a  broad  understanding  of 
this  nature,  we  might  then  properly  direct  our 
attention  to  the  tremendous  task  of  creating 
the  law  to  be  applied  in  the  mutual  relations  of 
the  Republics  of  this  continent.  It  is  highly 
desirable,  for  example,  that  there  should  be  an 
agreement  defining  the  rights  of  international 
creditors,  and  prescribing  the  precise  mode  of 
procedure  to  protect  these  rights.  There  should 
be  an  international  law  concerning  claims 
founded  on  government  concessions  granted  to 
aliens,  and  international  law  defining  the 
rights  of  aliens  in  times  of  domestic  revolt,  and 
an  international  law  of  torts  to  determine 
definitely  the  rights  of  aliens  in  claims  for  dam- 
ages on  account  of  alleged  injuries  at  the  hands 
of  foreign  states.  Such  questions  of  moment 
should  never  be  left  to  the  arbitrary  caprice  of 
governments;  nor  should  they  be  carelessly 
submitted  to  Arbitration  without  any  previous 
agreement  as  to  the  law  to  be  applied. 

international  There  is  also  an  immense  amount  of  work  to 
be  done  in  the  field  of  International  Private 
Law  in  order  to  help  bring  the  nations  of  this 
continent  into  closer  harmony.  In  Europe 
very  much  has  been  accomplished  by  interna- 
tional conventions  to  obtain  uniformity  in  law 


PAN-AMERICANISM  167 

and  procedure,  and  thus  remove  possible  oc- 
casions for  serious  conflicts  of  law.  These 
agreements  relate  mainly  to  commercial  prac- 
tice and  to  questions  concerning  "personal 
status."  It  is  most  desirable,  for  example,  that 
the  United  States  and  other  members  of  the 
Pan-American  Union  should  come  to  a  definite 
understanding  with  respect  to  the  rights  of 
domicile  and  nationality. 

The  task  of  removing  possible  grounds  for  "Conflicts  of 
conflicts  of  laws  is  rendered  supremely  difficult 
by  reason  of  the  two  distinct  systems  of  law 
in  use  in  the  United  States  and  in  the  other 
nations  of  America,  as  well  as  by  reason  of  the 
peculiarities  of  our  constitutional  system  which 
in  itself  stands  in  the  way  of  uniformity  of  law 
and  procedure  within  the  borders  of  the  United 
States.  And  yet  if  the  difficulties  are  great, 
they  also  indicate  how  great  is  the  need  of 
reconciling  antagonistic  conceptions  of  law, 
whether  within  or  without  our  borders.  The 
unity  of  nations  must  depend  primarily  on  a 
harmonization  of  varying  notions  in  regard  to 
legal  rights,  duties,  and  remedies.  If  nations 
have  no  common  law,  if  their  fundamental 
conceptions  of  rights  and  obligations  are  in- 


168         INTERNATIONAL  REALITIES 

compatible,  it  is  futile  to  ask  them  to  have  re- 
course to  a  common  court  of  justice. 

Commission  The  Third  International  American  Confer- 
ence of  1906  appointed  a  Commission  of  Jurists 
"for  the  purpose  of  drafting  codes  of  Private 
and  Public  International  Law  regulating  the 
relations  between  the  nations  of  America."  At 
the  opening  of  the  Congress  of  these  jurists, 
held  in  Rio  Janeiro  in  1912,  the  representative 
of  the  United  States,  Honorable  John  Bassett 
Moore,  summarized  in  the  following  compre- 
hensive manner  the  work  of  the  Commission : 

The  duty  of  the  present  Congress  is  comparatively 
simple,  and,  as  it  does  not  embrace  the  discussion  of 
principles  or  the  conclusion  of  conventions  on  contro- 
verted topics,  may  no  doubt  be  expeditiously  performed. 
Our  meeting  upon  the  present  occasion  marks  only  the 
beginning  of  the  great  work  that  lies  before  us,  a  work 
that  will  involve  hereafter  the  prolonged  and  profound 
study  of  general  principles,  of  conventional  agreements, 
and  of  domestic  legislation  and  judicial  and  administra- 
tive decisions,  to  the  end  that  by  becoming  acquainted 
with  our  points  of  disagreement,  as  well  as  of  agreement, 
we  may  be  sure  of  our  ground  and  go  forward  with  a  pre- 
cise knowledge  of  the  actual  legal  situation  in  each  coun- 
try concerned. 

It  is  earnestly  to  be  hoped  that  this  Com- 
mission of  Jurists  may  be  able  to  formulate 


PAN-AMERICANISM  169 

special  laws  to  apply  in  some  of  the  instances 
previously  mentioned,  where  everything  is  at 
present  so  confused  and  discordant  as  to  con- 
stitute a  constant  menace  to  the  peaceful  rela- 
tions of  the  American  nations.  The  adoption 
of  the  recommendations  of  this  Commission 
should  not  prove  difficult  or  doubtful.  One 
practical  result  of  their  labors  in  Rio  Janeiro 
was  the  adoption  of  an  agreement  concerning 
the  law  and  procedure  of  extradition. 

Another  most  promising  agency  for  the  ere-  international 
ation  of  the  body  of  law  needed  for  the  harmony  Commission 
and  welfare  of  relations  of  the  American  Re-  °n  Uniformity 
publics  is  the  International  High  Commission 
on  Uniformity  of  Laws  created  by  the  First 
Pan-American  Financial  Conference  held  in 
Washington  in  1915.  Its  object  is  to  devise 
means  of  adjusting  and  harmonizing  the  prin- 
ciples and  procedure  of  commercial  law  and 
administrative  regulation  in  the  American  Re- 
publics, and  to  work  for  the  solution  of  legal 
problems  in  the  fields  of  banking  and  public 
finance.  History,  both  recent  and  remote, 
should  conclusively  demonstrate  that  interna- 
tional harmony  cannot  depend  on  good-will 
alone,  or  on  what  Lord  Haldane  so  lauded  as 
international  "  Sittlichktit."  It  rests  ultimately 


170         INTERNATIONAL  REALITIES 

on  the  just  recognition  of  mutual  interests. 
There  can  be  no  international  peace  where 
these  interests  are  not  clearly  recognized,  duly 
respected,  and  legally  protected.  There  can  be 
no  possibility  of  international  organization 
until  common  understandings  exist  concerning 
the  practical  problems  arising  out  of  the  normal 
intercourse  of  nations.  There  is  perhaps  a 
danger  in  exaggerating  the  influence  of  eco- 
nomic factors  in  history;  but  there  can  be  no 
doubt  that  human  affairs  cannot  be  regulated 
by  sentiment  alone.  The  United  States  Con- 
stitution owed  its  inception  to  an  unofficial 
conference  of  delegates  at  Annapolis  to  -con- 
sider the  mutual  economic  interests  of  the 
States  of  the  Confederation.  May  we  not  rea- 
sonably hope  that  the  labors  of  such  bodies 
as  the  International  High  Commission  on  Uni- 
formity of  Laws,  and  the  Commission  of  Ju- 
rists may  prove  the  logical  first  steps  toward 
an  effective  organization  of  the  American  na- 
tions which  shall  be  based,  not  on  sentiment, 
alone,  but  on  solid  interests  clearly  defined  and 
protected  by  uniform  legislation  ? 

The  This  brings  us  to  the  consideration  of  a  most 

Unfo^its"*1  important  question,  namely,  the  functions  and 
possibilities      scope  of  the  Pan-American  Union  in  Washing- 


PAN-AMERICANISM  171 

ton  with  reference  to  all  matters  of  mutual  in- 
terest, particularly  the  adoption  of  laws  gov- 
erning the  relations  of  the  States  which  are 
members  of  the  Union.  Is  it  not  of  great  sig- 
nificance that  during  this  momentous  war  the 
representatives  of  the  Union  should  have  been 
in  constant  consultation  in  respect  to  the  pro- 
tection of  the  rights  of  neutrals  ?  Is  there  any 
sound  reason  why  they  should  not  be  empow- 
ered to  crystallize  their  common  counsels  into 
definite  and  permanent  form  as  an  integral 
portion  of  the  international  legislation  of  the 
American  nations  ?  If  the  affairs  of  any  par- 
ticular nation  should  become  so  utterly  de- 
moralized as  to  give  serious  concern  to  its 
neighbors,  why  should  not  this  representative 
assembly  be  fully  empowered  to  deal  directly 
with  the  problem  involved,  or  to  delegate  such 
power  to  certain  of  its  members  ?  If  it  should 
appear  that  the  Republics  of  Central  America 
would  be  infinitely  better  off  united  again  in 
one  state,  and  that  they  were  awaiting  only 
the  sympathetic  initiative  of  outside  friends, 
what  finer  work  for  the  cause  of  peace  could 
the  Pan-American  Union  accomplish  than  the 
reuniting  of  brothers  suffering  from  the  evils 
of  disunion  ?  Should  we  come  to  realize  that 


172         INTERNATIONAL  REALITIES 

one  of  the  greatest  obstacles  to  international 
peace  is  the  existence  of  artificial  economic 
barriers,  erected  at  the  behest  of  a  benighted 
Chauvinism,  could  we  not  through  the  medium 
of  the  Pan-American  Union  attain  an  agree- 
ment to  abolish  protective  tariffs  and  narrow 
restrictions  on  coastwise  trade  ?  Through  the 
judicious  use  of  the  principles  of  initiative  and 
referendum,  it  would  seem  as  if  we  had  in  the 
Pan-American  Union  precisely  the  organiza- 
tion needed  to  effectively  express,  and  prac- 
tically to  apply,  the  sentiment  for  unity  already 
in  evidence. 

Duty  of  In  the  great  movement  for  world  peace,  the 

special  duty  of  the  United  States  would  there- 
fore seem  to  be  this  most  difficult,  though  in- 
spiring, task  of  helping  to  bring  into  harmony 
the  Pan-American  nations.  If  we  labor  whole- 
heartedly to  foster  like  conceptions  of  rights 
and  duties,  and  identic  economic  interests  and 
sympathies,  then  may  we  decide  in  common 
those  large  questions  of  mutual  concern  which 
are  now  left  to  the  separate  diplomatic  nego- 
tiations and  agreements  of  the  several  Amer- 
ican nations.  Then  may  we  constitute  a 
genuine  American  legislative  assembly.  Then 


PAN-AMERICANISM  173 

may  we  lay  the  solid  foundations  of  unity  on 
the  sound  basis  of  law.  Then  may  we  look 
forward  with  justifiable  optimism  to  the  speedy 
establishment  of  an  American  International 
Supreme  Court  of  Justice,  maintained  by  an 
adequate  sanction  and  thus  worthy  of  all  re- 
spect. But  these  magnificent  projects  will  not 
be  accomplished  merely  through  a  realization 
of  their  desirability  or  of  their  feasibility.  "The 
substitution  of  law  for  war"  is  a  painfully  slow 
process.  It  is  to  be  done  by  "doing  the  work 
that's  nearest."  And  the  "work  that's  nearest " 
for  us  is  the  splendid  task  of  converting  Pan- 
American  Union  into  Pan-American  Unity, 
based  on  positive  law  and  true  justice. 


CHAPTER  IX 


Causes  of  the 
Great  War 


The 

"democrati- 
zation of 
foreign 
policies" 


DEMOCRACY  AND  DIPLOMACY 

Explanations  of  the  causes  of  the  Great  War 
of  1914  are  naturally  diverse,  varying  with  the 
prejudices,  the  temperament,  and  the  type  of 
mind  of  each  individual.  Some  hold  that  it 
was  caused  by  Militarism — a  conveniently 
vague  term,  like  Socialism.  Others  attribute 
the  war  to  commercial  greed,  love  of  power,  the 
mutual  distrust  of  nations,  or  to  the  passions 
and  evil  hearts  of  men. 

An  explanation  readily  accepted  is  that  the 
great  catastrophe  is  directly  due  to  the  in- 
trigues, the  machinations  of  Diplomacy.  It 
is  easy  to  picture  Democracy  as  the  helpless 
victim  of  designing  Diplomats  who  take  a 
fiendish  delight  in  wicked  conspiracies,  and 
find  their  supreme  satisfaction  in  provoking  a 
world  war.  The  popular  cry  now  is  for  the 
abolition  of  "Secret  Diplomacy,"  and  the 
"Democratization  of  Foreign  Policies,"  in  the 
naive  belief  that  the  people  are  quite  capable 
174 


DEMOCRACY  AND  DIPLOMACY        175 

of  carrying  on  diplomatic  negotiations  in  the 
market-place.  Among  the  able  exponents  of 
this  theory  are  Norman  Angell,  G.  Lowes 
Dickinson — both  Englishmen — and  Walter 
Lippman,  in  his  most  interesting  book,  The 
Stakes  of  Diplomacy.  They  support  their 
thesis  with  considerable  dialectic  skill,  and 
brush  away  difficulties  with  an  argument  to 
the  effect  that  things  could  not  be  much  worse 
under  a  democratic  control  of  foreign  affairs — 
a  kind  of  reasoning  which  would  justify  invok- 
ing the  services  of  a  veterinary  surgeon  in  a 
case  of  appendicitis  or  cancer,  when  the  skilled 
physician  had  not  been  able  to  effect  a  cure  or 
obviate  an  operation. 

At  the  outset  it  would  seem  desirable  to  note  Popular 
what  seems  to  be  a  fundamental  misapprehen-  Diplomacy0 
sion  back  of  this  current  distrust  of  Diplomacy,  with  policies 
namely,  a  confusion  of  methods  with  policy. 
Diplomacy  and  its  agents  have  been  credited 
with  possessing  power  they  do  not  possess,  par- 
ticularly since  the  introduction  of  easy  means 
of  communication,   which   no   longer,    as   for- 
merly, permit  very  much  personal  freedom  of 
action,    initiative,    and   discretion.     They   are 
credited  with  being  the  directing  force,  when 
they  are  only  the  instruments,  the  agents.    It 


i76 


INTERNATIONAL  REALITIES 


Statesmen 

determine 
diplomatic 
policies 


is  true  that  Diplomats  intrigue  at  times,  and 
resort  to  questionable  methods  to  accomplish 
their  ends;  but  so  do  lawyers,  business  men, 
politicians,  and  even  representatives  of  phil- 
anthropic or  religious  organizations.  One  does 
not  feel  justified  thereby  in  condemning  the 
profession  of  law,  business,  politics,  philan- 
thropy, and  religion.  In  many  instances,  if  the 
firm,  society,  or  organization  find  that  their 
representatives  are  behaving  improperly  they 
are  quick  to  reprove,  punish,  or  discharge  such 
unworthy  agents.  In  other  instances,  if  the 
directing  policy  of  these  organizations  is  found 
to  be  dishonest  or  vicious,  criticism  is  properly 
centred  not  on  the  representatives,  but  on  the 
management. 

And  so  it  is  with  Diplomacy:  the  agents, 
the  mere  tools,  are  of  slight  account.  The 
powers  that  direct,  the  policies  they  formu- 
late, are  the  supreme  factors.  Foreign  poli- 
cies depend  very  largely  on  the  character  and 
intelligence  of  the  statesmen  responsible  for 
the  conduct  of  foreign  relations.  A  Metter- 
nich,  holding  reactionary  though  honest  opin- 
ions, will  resort  to  methods  hateful  to  Democ- 
racy. A  Cavour,  fired  by  nationalistic  dreams 
for  his  country,  will  use  various  means  at  hand 


DEMOCRACY  AND  DIPLOMACY       177 

to  achieve  his  worthy  ends.  So  with  a  Glad- 
stone full  of  moral  zeal;  a  Bismarck  seeking 
the  unity  of  Germany,  a  Hay  trying  to  apply 
the  Golden  Rule  in  international  affairs,  and 
a  Sir  Edward  Grey  endeavoring  to  restrain 
Europe  from  the  brink  of  disaster.  In  all  these 
cases,  diplomatic  methods  are  bound  to  respond 
to  the  demands  and  the  policies  of  the  states- 
men at  the  head  of  the  nation.  Criticism, 
therefore,  should  be  centred,  not  on  Diplo- 
macy in  general,  but  on  the  policies  which  Di- 
plomacy is  instrumental  in  carrying  into  effect. 
The  problem  thus  becomes  a  much  larger  one 
than  the  nature  of  Diplomacy:  it  concerns  the 
formulation  of  national  policies,  and  the  abil- 
ity of  the  crowd  in  the  market-place  to  formu- 
late these  policies. 

To  grapple  intelligently  with  this  great  prob-  The  functions 
lem,  it  is  necessary,  first  of  all,  to  be  perfectly  * 
clear   concerning  the   functions  of  Diplomacy 
in  order  to  avoid  certain  common  misappre- 
hensions which  render  discussion  of  the  whole 
subject  difficult  or  impossible.     Diplomacy  has 
been  well  defined  as  "the  art  of  negotiation." 
It  is  essentially  the   application  to  questions 
of   an   international    nature,    of  the   ordinary 


i78 


INTERNATIONAL  REALITIES 


Success  of 
untrained 
American 
Diplomats 


rules  of  negotiation  among  men,  whether  in 
law,  business,  politics,  or  any  enterprise  re- 
quiring relations  with  other  men.  It  requires 
the  same  knowledge  of  men,  the  same  keenness 
of  insight,  the  same  power  of  discussion,  of 
persuasion;  in  sum,  the  same  tact,  or  what  we 
are  accustomed  to  denote  generally  as  common 
sense.  It  is  true  that  there  are  special  forms  of 
etiquette,  of  technic  in  writing,  and  rules  of 
the  diplomatic  game,  which  it  is  desirable  to 
know;  but  they  are  not  so  obscure  or  com- 
plicated as  many  would  infer.  They  are  forms 
and  rules  which  clever  men  master  easily,  and 
which  are  readily  communicated  by  clerks  and 
subordinate  officials.  Diplomacy  is  far  from 
being  what  some  would  seem  to  suggest — a 
kind  of  "Sacred  College"  of  Roman  Fetiales, 
who  have  been  initiated  into  the  mysteries  of 
diplomatic  negotiation. 

The  truth  of  this  fact  has  been  borne  out  in 
our  own  history  since  the  days  of  Benjamin 
Franklin,  our  first  Diplomat  in  every  sense  of 
the  term.  Franklin,  Gallatin,  Bancroft,  Mot- 
ley, Lowell,  Adams,  White,  Choate,  Reid, 
Herrick,  the  Pages,  van  Dyke,  Gerard,  and 
Morgenthau,  are  all  instances  of  the  ability  of 
men  chosen  from  public  and  private  life  to 


DEMOCRACY  AND  DIPLOMACY        179 

master  the  "Art  of  Negotiation."  The  qualities 
which  made  them  successful  as  men  of  affairs 
at  home  were  the  very  qualities  essential  for 
the  duties  of  American  Diplomats.  To  these 
qualities  of  mind,  heart,  and  personality  must 
be  added  the  distinction  of  being,  on  the  whole, 
truly  representative  Americans. 

Granted,  then,  that  Democracy  can  usually  is  Democracy 
find  able  servants  to  protect  its  interests  abroad,  ^omacy?** 
does  it  follow  that  Democracy  is  also  able  to 
direct  their  actions,  and  conduct  its  own  for- 
eign relations  ?  Is  Democracy  competent  to 
determine  in  the  market-place — as  Angell  and 
others  would  insist — the  great  policies  which  its 
representatives  are  to  execute  ?  Must  the 
President  and  his  advisers  hold  Cabinet  meet- 
ings in  public,  and  take  no  action  without  first 
obtaining  the  approval  of  the  populace  ? 

De  Tocqueville  in  his  great  work  on  Ameri-  De  Tocque- 

T-V  i  ville's  views 

can  Democracy  remarks: 

As  for  myself,  I  do  not  hesitate  to  say  that  it  is  es- 
pecially in  the  conduct  of  their  foreign  relations  that 
Democracies  appear  to  me  decidedly  inferior  to  other 
governments.  .  .  .  Democracy  is  favorable  to  the  in- 
crease of  the  internal  resources  of  a  State;  it  diffuses 
wealth  and  comfort,  promotes  public  spirit,  and  fortifies 
respect  for  law  in  all  classes  of  society:  all  these  are  ad- 


i8o          INTERNATIONAL  REALITIES 

vantages  which  have  only  an  indirect  influence  over  the 
relations  which  one  people  bears  to  another.  But  a  De- 
mocracy can  only  with  great  difficulty  regulate  the  details 
of  an  important  undertaking,  persevere  in  a  fixed  design, 
and  work  out  its  execution  in  spite  of  serious  obstacles. 
It  cannot  combine  its  measures  with  secrecy,  or  wait 
their  consequences  with  patience.1 

One  may  well  differ  from  de  Tocqueville  in 
his  preference  for  government  by  Aristocracy, 
but  still  find  much  force  in  his  strictures  re- 
garding the  incapacity  of  Democracy  to  carry 
on  foreign  relations.  Our  faith  in  the  repre- 
sentative form  of  government  in  the  United 
States  may  be  fully  justified,  and  yet  we  may 
well  agree  with  de  Tocqueville  that  there  are 
great  difficulties  in  the  way  of  the  "Democra- 
tization of  Foreign  Policies." 

Need  of  A  most  important  reason  why  Democracy  is 

Diplomacy  not  ^tte^  to  conduct  foreign  relations  is  to  be 
found  in  the  need,  alluded  to  by  de  Tocqueville, 
of  secrecy,  of  at  least  a  certain  degree  of  secrecy, 
in  diplomatic  negotiations  of  a  delicate  nature, 
as,  for  example,  the  proposed  purchase  of  the 
Danish  West  Indies  by  the  United  States. 
Those  who  urge  publicity  in  foreign  affairs 
can  hardly  hold  that  publicity  in  all  human 

i  Chap.  XIII. 


DEMOCRACY  AND  DIPLOMACY       181 

affairs  is  possible  or  even  desirable.  It  would 
not  be  maintained,  for  instance,  that  an  in- 
dustrial corporation  could  be  successfully  man- 
aged through  public  meetings  of  its  board  of 
directors  and  the  disclosure  to  competitors  of 
valuable  information.  The  affairs  of  a  univer- 
sity could  not  be  carried  on  with  due  regard 
for  the  interests  of  all  concerned  by  public 
meetings  of  the  trustees  or  the  faculty  in  the 
presence  of  the  students  and  alumni.  It  is 
evident  that  there  is  hardly  a  human  interest, 
whether  of  the  family,  private  business,  or 
public  organization,  where  a  certain  degree  of 
secrecy  is  not  prudently  required  and  emi- 
nently proper.  There  is  nothing  necessarily 
reprehensible  in  a  wise  reserve,  a  respect  for 
privacy,  a  regard  for  sensibilities,  a  sincere  con- 
cern for  the  adequate  protection  of  legitimate 
interests. 

How  much  truer  this  is  in  matters  of  inter- 
national concern  where  vast  interests  must  be 
properly  safeguarded,  and  questions  of  extreme 
delicacy  likely  to  embroil  nations  must  be  han- 
dled with  consummate  skill.  If  the  Presi- 
dent should  have  convincing  evidence  that  a 
certain  Power — Japan,  for  example — was  in- 
triguing against  the  United  States  and  ready 


182          INTERNATIONAL  REALITIES 

at  any  moment  to  take  aggressive  action,  how 
much  would  it  help  in  dealing  with  such  a 
situation  to  make  an  official  announcement 
of  this  fact  ?  If  the  Administration  were  re- 
liably informed  that  another  Power  was  plan- 
ning to  get  possession  of  the  Danish  West 
Indies  for  the  purpose  of  establishing  a  naval 
base  to  menace  American  control  of  the  Pan- 
ama Canal,  would  it  be  prudent  to  so  inform 
the  American  public  and  the  world  in  general  ? 
Obviously,  in  either  case,  dangerous  friction 
would  be  created,  the  diplomatic  and  military 
measures  adopted  by  the  Government  to  avert 
trouble  would  be  largely  nullified,  and  war  very 
likely  precipitated  by  such  extraordinary  dis- 
closures. 

Value  of  There  is  no  doubt,  of  course,  that  a  certain 

publicity  measure  of  publicity  in  affairs  of  state  has  been 
most  effective  at  times  in  checking  abuses  and 
preventing  corruption.  It  is  clear,  also,  that  the 
growth  of  constitutional  government  through- 
out the  world,  by  its  checks  on  Monarchy  and 
Aristocracy,  has  been  of  great  value  in  thwart- 
ing the  evil  designs,  and  in  eliminating  the 
dynastic  wars  of  irresponsible  monarchs.  Pub- 
licity, the  "thinking  out  loud"  of  Democ- 
racies, of  which  Lorimer  speaks,  has  unquestion- 


DEMOCRACY  AND  DIPLOMACY       183 

ably  served  an  excellent  purpose.  It  is  not 
necessary,  however,  to  go  to  the  extreme  of 
saying  that  all  affairs  of  state  should  be  con- 
ducted with  absolute  publicity;  that  they  are 
not  subject  to  the  ordinary  rules  of  prudence, 
reserve,  and  secrecy  observed  in  other  human 
affairs.  This  would  be  quite  unreasonable; 
and  yet  it  is  the  kind  of  reasoning  that  vitiates 
the  proposal  for  the  "Democratization  of  For- 
eign Policies,"  the  demand  for  public  discus- 
sions in  the  market-place. 

It  should  also  be  borne  in  mind  that,  by  Comprehen- 
reason  of  their  elevated  position,  their  widened  flve  , 

knowledge 

horizon,  their  comprehensive  knowledge  of  in-  required  in 
ternational  politics,  their  confidential  avenues  Dlpl(M 
of  information,  the  responsible  statesmen  of  a 
nation  are  infinitely  better  fitted  to  deal  in- 
telligently with  a  trying  diplomatic  situation, 
a  great  crisis,  than  the  people  at  large.  In 
times  of  extreme  tension  created  by  such  in- 
cidents as  the  sinking  of  the  Lusitania  and  the 
Sussex,  the  general  public,  of  course,  is  at  once 
apprized  of  the  main  facts.  The  President, 
moreover,  yielding  to  the  importunate  demands 
of  the  Press,  is  compelled  to  disclose  just  as 
much  of  the  diplomatic  negotiations  as  the 
exigencies  of  the  situation  and  the  best  inter- 


184         INTERNATIONAL  REALITIES 

ests  of  the  country  may  permit.  He  cannot, 
however,  take  the  public  completely  into  his 
confidence.  Even  if  he  gives  out  the  texts  of 
important  cipher  messages  before  they  are  re- 
ceived by  the  other  Government,  he  cannot 
with  prudence  or  decency  disclose  the  candid, 
though  perhaps  unauthorized,  personal  state- 
ments of  the  diplomatic  representative  of  that 
Government  in  his  loyal  efforts  to  adjust  the 
difficulty  on  an  honorable  basis.  Partial  in- 
formation is  thus  worse  than  no  information. 
The  general  public  may  reach  entirely  errone- 
ous conclusions  from  the  published  corre- 
spondence, issued  in  part  for  "public  con- 
sumption," when  the  most  important  features 
of  the  negotiations  may  have  been  treated  in 
personal  "conversations,"  which  of  necessity 
cannot  be  made  a  matter  of  record  or  publicly 
disclosed.  Under  such  circumstances  De- 
mocracy must  either  be  discreetly  patient  or 
endanger  the  efforts  of  wise  and  patriotic 
statesmen  to  steer  the  Ship  of  State  in  time  of 
storm. 

As  a  matter  of  practice,  the  American  De- 
mocracy  has  usually  shown  remarkable  re- 
straint  in  times  of  international  storm;  has 
reposed  great  confidence  in  the  President,  and 


DEMOCRACY  AND  DIPLOMACY        185 

rallied  in  a  non-partisan  manner  to  his  support. 
It  has  thereby  confessed  its  own  sense  of  in- 
capacity to  handle  foreign  affairs  by  any  proc- 
ess of  Initiative  and  Referendum.  This  was 
vividly  demonstrated  at  the  time  of  the  occu- 
pation by  American  forces  of  the  Mexican  port 
of  Vera  Cruz  in  April,  1914.  It  was  clear  that 
few  wanted  war,  or  even  intervention,  and 
that  many  disapproved  of  the  Administration's 
policy;  and  yet,  the  President  had  the  loyal 
support  of  the  whole  country  in  the  action  he 
saw  fit  to  take  at  that  juncture.  It  will  also 
be  recalled  how,  at  the  time  of  the  crisis  with 
Germany  over  the  sinking  of  the  Sussex,  when  . 
certain  interests  opposed  to  the  policy  of  the 
President  endeavored  to  curb  his  freedom  by 
Congressional  action,  the  whole  country  indig- 
nantly warned  Congress  to  leave  the  control  of 
foreign  relations  where  it  properly  belongs,  in 
the  hands  of  the  President  and  his  advisers. 

Other  suggestive  historical  instances  might  be  Washington's 
cited  to  advantage  in  this  connection.     Wash-  toward 
ington  was  compelled  to  face  a  most  trying  France 
situation  at  the  time  of  the  French  Revolution, 
when   many   Americans — Jefferson   included — 
felt  strongly  convinced  that  the  United  States 
was    bound    by    its   Treaty    of  Alliance   with 


i86 


INTERNATIONAL  REALITIES 


Lincoln's 
policy  in  the 
"Trent" 
incident 


France  to  come  to  its  aid  against  Great  Britain. 
Washington,  however,  with  as  keen  a  sense  of 
honor,  but  with  a  wider  range  of  vision,  a  reali- 
zation of  all  the  factors  involved,  and  an  appre- 
ciation of  the  permanent  best  interests  of  the 
United  States,  wisely  determined  otherwise. 
As  de  Tocqueville  justly  observes,  "nothing 
but  the  inflexible  character  of  Washington,  and 
the  immense  popularity  which  he  enjoyed, 
could  have  prevented  the  Americans  from  de- 
claring war  against  England.  .  .  .  The  ma- 
jority reprobated  his  policy,  but  it  was  after- 
ward approved  by  the  whole  nation/' 1 

Consider  the  situation  confronting  Lincoln 
at  the  time  of  the  Mason-Slidell  incident, 
when  the  North  was  exulting  over  the  capture 
of  the  Confederate  Commissioners  from  a 
British  vessel,  the  Trent;  and  the  British  pub- 
lic, on  the  other  hand,  was  aflame  with  indig- 
nation over  what  they  considered  a  gross  out- 
rage. Only  the  patient,  courageous,  wise  policy 
of  Lincoln  enabled  the  United  States  to  reach 
a  prudent  and  honorable  settlement  of  the  diffi- 
culty through  diplomatic  negotiation.  It  has 
been  asserted  with  considerable  show  of  rea- 
son, that  if  there  had  existed  at  that  moment 

1  Democracy  in  America,  chap.  XIII. 


DEMOCRACY  AND  DIPLOMACY        187 

the  same  easy  means  of  cable  and  wireless  com- 
munication as  at  the  present  time,  the  same 
degree  of  publicity,  war  between  England  and 
the  United  States  in  all  probability  would  have 
been  inevitable.  An  inflamed  public  opinion 
in  both  countries  would  most  likely  have  ren- 
dered a  peaceful  adjustment  impossible. 

Take  the  matter  of  the  daring  conspiracies  President 
on  American  soil  by  German  official  agents,  as  policynS 
plainly  proved  in  the  cases  of  von  Papen,  Boy-  concerning 
Ed,  and  von  Igel,  all  Attaches  of  the  German 
Embassy  in  Washington.  There  is  little  doubt 
that  if  the  Administration  had  disclosed  to  the 
American  people  all  the  mass  of  incriminating 
evidence  in  its  possession,  which  was  partially 
disclosed  through  British  sources,  public  feel- 
ing would  have  run  so  high  as  to  demand  at 
least  a  complete  rupture  of  diplomatic  relations 
with  Germany.  Some  may  well  believe  that 
this  would  have  been  the  only  self-respecting 
course  for  the  United  States  to  take  under  the 
circumstances.  The  Administration  evidently 
thought  otherwise,  and  the  American  people, 
if  they  maintain  their  confidence  in  their  repre- 
sentatives charged  with  so  great  responsibility, 
must  believe  that  the  best  interests  of  the  coun- 
try were  served  by  President  Wilson's  policy. 


i88          INTERNATIONAL  REALITIES 

In  all  these  three  instances  there  is  every 
reason  to  believe  that  discussion  in  the  market- 
place and  a  direct,  democratic  control  of  for- 
eign affairs  would  have  resulted  in  very  serious 
difficulties  for  the  country.  It  would  seem  con- 
trary to  experience  and  reason  to  believe  that 
Democracy  would  be  any  more  able  to  avoid 
wars  than  would  "Secret  Diplomacy."  Other 
instances,  of  course,  might  be  profitably  re- 
called to  show  the  incapacity  of  Democracy  to 
judge  wisely,  and  act  with  calm,  sure  confi- 
dence in  an  international  crisis,  as,  for  example, 
the  stupid  intrusion  of  the  French  Chamber  of 
Deputies  in  the  policy  of  the  Government, 
when  England  invited  France  to  intervene 
jointly  in  Egypt.  It  would  not  seem  necessary, 
however,  to  stress  further  this  fundamental 
truth  that  Democracy  is  ill  fitted  to  conduct 
foreign  relations  by  market-place  discussions. 
By  way  of  resume,  this  incapacity  is  due  to 
three  reasons:  (i)  the  inability  of  the  general 
public  to  be  fully  informed,  to  comprehend  all 
the  factors  involved;  (2)  the  supreme  need  of 
secrecy  at  certain  moments  in  order  to  forward 
legitimate  ends  for  the  security  of  the  State, 
and  to  avert  trouble;  and  (3)  what  has  been 
well  characterized  by  de  Tocqueville  as  the 


DEMOCRACY  AND  DIPLOMACY        189 

inability  of  Democracy  to  "regulate  the  details 
of  an  important  undertaking,  persevere  in  a 
fixed  design,  and  work  out  its  execution  in 
spite  of  serious  obstacles." 

Except  for  those  who  never  have  sensed  great  issue 
responsibilities,  who  have  only  looked  on  from  u 
the   "side  lines,"  who  have  evolved  in  their  Government" 
armchairs    splendid    theories    for   the   govern-  ^sentathre 
ment  of  the  State  and  the  Universe,  reasons  Government" 
of  the  character  suggested  would  seem  suffi- 
cient to  indicate  the  folly  of  the  proposition  to 
encourage  Democracy  to  take  the  control  of 
international  relations  from  the  hands  of  its 
trusted  statesmen.     From  the  point  of  view  of 
political  theory  the  issue  is  to  be  drawn  be- 
tween  those  who   believe   in    Direct   Govern- 
ment— the    restoration    of    a    pure    form    of 
Athenian  Democracy — and  those  who  believe 
in    truly    Representative    Government,    which 
reposes  confidence  in  and  gives  loyal  support 
to  those  chosen  to  steer  the  Ship  of  State. 

But  it  will  be  replied  by  some  that,  while  the  inability  of 
captain  of  a  ship  is  responsible  for  navigation, 
the  owners  of  the  ship  are  entirely  within  their  policies 
rights  in  determining  the  port  of  destination; 
that  a  whole  people  must  be  allowed  to  deter- 


INTERNATIONAL  REALITIES 


Confidence  of 
Democracy  in 
its  repre- 
sentatives 


mine  the  policy  of  a  nation,  whether,  for  ex- 
ample, it  be  for  war  or  peace.  There  would 
seem  to  be  some  truth  in  this  argument,  par- 
ticularly if  a  people  believe  in  non-resistance,  or 
are  gross  materialists  whose  national  motto  is 
"anything  for  a  quiet  life,"  and  who  imagine 
that  war  may  be  avoided  at  all  hazards.  But 
a  contemplation  of  history,  of  the  mysterious, 
inexorable  forces  which  seem  to  determine  the 
destinies  of  nations;  of  the  sudden  storms  that 
arise,  the  dangers,  the  tests  of  manhood,  the 
appeals  to  honor  and  sense  of  duty — all  tends  to 
reveal  the  utter  futility  of  attempting  to  for- 
mulate with  any  certainty  a  national  policy 
able  to  confront  any  emergency.  One  is  led  to 
appreciate  the  profound  truth  of  the  epigram 
uttered  by  President  McKinley:  "Duty  de- 
termines Destiny."  And  the  ready,  courageous 
recognition  of  national  duty  must  necessarily 
lie  with  those  charged  with  supreme  respon- 
sibility, who  are  best  able  to  judge  of  the  exact 
situation,  and  the  measures  required  for  the 
security  of  the  true  interests  of  the  State,  and 
of  international  society  in  general. 

This,  of  course,  exacts  a  high  degree  of  trust- 
fulness in  its  representatives  on  the  part  of 
Democracy,  especially  when  one  realizes  the 


DEMOCRACY  AND  DIPLOMACY        191 

enormous  power  centred  in  the  hands  of  the 
President  as  Commander-in-Chief  of  the  Army 
and  Navy,  as  well  as  of  the  forces  of  Diplomacy 
• — his  power  to  create,  by  the  use  or  misuse  of 
all  these  elements,  a  situation  whereby  the 
country  may  be  plunged  into  war  before  Con- 
gress can  exercise  its  prerogative  of  declaring 
war.  If  Democracy  is  ever  betrayed  by  its 
representatives  it  can  only  withdraw  its  con- 
fidence and  visit  its  scorn  on  them.  This,  it 
must  be  acknowledged,  is  a  defect  of  any  form 
of  government  other  than  pure  Democracy.  It 
would  seem,  however,  in  the  light  of  previous 
considerations,  an  infinitely  lesser  defect  than 
would  be  involved  in  requiring  absolute  pub- 
licity in  foreign  affairs,  the  consultation  of  the 
passengers  by  the  captain  of  the  ship  at  every 
emergency,  the  Initiative  and  Referendum,  the 
"collective  unwisdom "  of  the  market-place. 

The  question  naturally  arises  whether,  if  the  The 
people  are  not  competent  to  direct  and  control  service* 
Diplomacy,  there  is  not  therefore  a  necessity 
for  diplomatic  experts  specially  trained  to  rep- 
resent   the    nation's    interests    abroad.      It    is 
quite  common  to  assume  as  a  matter  of  course 
that  the  United  States  should  have  a  perma- 


IQ2          INTERNATIONAL  REALITIES 

nent  corps  of  trained  Diplomats  just  as  we  have 
a  permanent  corps  of  experts  in  the  Army  and 
the  Navy.  Is  this  assumption  correct  ?  Is 
there  a  real  analogy  between  the  Diplomatic 
Service  and  the  Army  or  the  Navy  ? 

NO  parallel  In  the  first  place,  it  should  be  re-emphasized 

between  •  t  i»  •  r 

Diplomatic       tnat    the    qualities    necessary    for    success    in 
Service  and      Diplomacy  are  the  very  qualities  necessary  for 

Army  or  .  .  . 

Navy  pre-eminence  and  success  in  private  and  public 

life,  namely,  tact,  knowledge  of  men,  intelli- 
gence, courage,  and,  in  general,  what  we  are  ac- 
customed to  call  common  sense.  These  are  the 
possessions  of  no  privileged  class,  whether  of 
Diplomats  or  business  men.  They  certainly 
are  not  the  technical  requirements  which  men 
in  the  Army  and  Navy  must  possess — that  ex- 
pert knowledge  of  guns  and  ships,  machinery 
and  organization,  tactics  and  strategy.  It  is 
therefore  most  misleading  to  speak  meta- 
phorically of  Diplomats  as  constituting  the 
outer  line  of  defense  of  a  country,  and  hence 
requiring  to  be  specially  trained  into  a  special 
corps  as  a  co-ordinate  Service  with  the  Army 
and  Navy.  It  is  true  that  Diplomats  oc- 
casionally require  the  aid  of  the  Army  and 
Navy,  and  that  they  often  obviate  the  neces- 
sity for  either,  but  it  is  not  true  that  there  is 


DEMOCRACY  AND  DIPLOMACY       193 

any  real  parallel  between  them  as  concerns  ex- 
pert knowledge  and  training. 

A  little  reflection  concerning  certain  facts,  Objections  to 
I  am  confident  from  personal  experience,  will 


lead  one  seriously  to  question  the  desirability  Service 
of  having  a  permanent,  classified  Diplomatic  timber" 
Service,  offering,  as  the  Army  and  Navy,  a  life 
career.  One  great  objection  lies  in  the  accumu- 
lation of  what  a  colleague  in  the  British  Diplo- 
matic Service  once  characterized  as  "dead 
timber."  A  sure  tenure  of  service,  the  attain- 
ment of  a  certain  respectable  rank,  a  substan- 
tial increase  in  one's  family  with  all  its  increas- 
ing needs,  a  routine,  bureaucratic  method  of 
transacting  business,  a  perfunctory  attitude 
toward  matters  of  importance  —  all  conduce 
most  powerfully  to  a  consequent  lack  of  ambi- 
tion, power  of  initiative,  and  a  desire  for  quiet 
ease  —  to  that  condition  characterized  as  "dead 
timber."  Mere  skill  in  the  drafting  of  notes, 
in  the  orderly  conduct  of  chancery  work,  in 
social  address,  can  in  no  way  compensate  for 
the  loss  of  that  personal  initiative,  that  keen 
interest  and  fresh  enthusiasm  which,  as  a  rule, 
has  distinguished  most  of  the  American  Diplo- 
matic representatives  eager  to  make  a  credit- 


194          INTERNATIONAL  REALITIES 

able  record  during  the  uncertain  time  of  their 
service  abroad. 

"Representa-  Another  great  objection  to  a  permanent, 
diplomats  classified  Diplomatic  Service  is  the  danger  to 
required  which  diplomats  are  exposed,  and — for  some  in- 
explicable reason — American  diplomats  in  par- 
ticular, of  becoming  denationalized  to  a  cer- 
tain extent,  of  becoming  cosmopolitan  to  such 
a  devitalizing  degree  that  they  may  cease  to 
be  thoroughly  representative  of  their  country, 
in  its  varied  interests,  its  national  characteris- 
tics, its  feelings,  sympathies,  and  even  its 
ideals.  The  prime  requisite  in  a  diplomat  is 
that  he  should  be  absolutely  representative, 
the  faithful  interpreter  of  his  fellow  country- 
men, of  their  ideas,  ideals,  and  highest  inter- 
ests. Anything  which  operates  to  deprive  a 
man  of  direct,  vital  touch  with  the  daily  life, 
the  swiftly  changing  life  of  a  country  like  the 
United  States,  and  with  its  intimate  concerns, 
inevitably  tends  to  render  him  less  efficient  as 
a  diplomatic  representative  of  his  country. 

Freedom  of          This  fact  is  of  special  importance  when  it 

President  in  •  r  •         i         i-    •  T 

choice  of         comes  to  the  question  or  national  policies.     It 
diplomats  to     is   apparent  tnat  the  United  States  has  been 

execute 

policies  unable  to  lay  down  the  broad  lines  of  perma- 


DEMOCRACY  AND  DIPLOMACY       195 

nent  policies  so  that  they  may  be  automatically 
carried  out  and  developed  by  successive  Ad- 
ministrations. Even  the  Monroe  Doctrine, 
which  is  generally  regarded  as  a  permanent 
policy,  has  been  subjected  to  ever  new  and 
extraordinary  interpretations  that  have  pro- 
foundly altered  its  original  character.  Witness 
the  "Receivership  Policy"  of  President  Roose- 
velt, the  "Dollar  Diplomacy"  of  President 
Taft,  and  the  "Constitutionalism"  of  Presi- 
dent Wilson.  In  all  such  instances  the  Presi- 
dent, in  the  execution  of  his  foreign  policies,  is 
fairly  entitled  to  the  services  of  men  in  direct 
touch  and  sympathy  with  the  Administration 
and  its  purposes.  He  is  entitled  to  the  greatest 
freedom  in  selecting  men  of  affairs,  of  large 
vision,  and  ability  to  properly  represent  the 
nation  abroad.  He  cannot  justly  be  circum- 
scribed in  his  choice,  whether  for  Panama, 
Pekin,  or  the  Court  of  Saint  James,  to  a  list  of 
men  long  in  residence  abroad  and  out  of  vital 
touch  with  their  country,  often  without  the 
peculiar  qualifications  required  for  appoint- 
ment at  a  given  moment  to  some  post  of  special 
importance.  He  must  be  free  to  choose  men  of 
the  stamp  of  Lowell,  Hay,  Herrick,  van  Dyke, 
Reinsch,  and  Francis. 


ig6         INTERNATIONAL  REALITIES 
Permanent  If  the  President  be  free — as  he  ought  properly 

Service*  to    ^e    ^ree *n    n*S    rignt   of  appointment Sub- 

undesirable  ject,  of  course,  to  the  consent  of  the  Senate- 
then  all  possibility  of  a  permanent,  classified 
Diplomatic  Service  is  naturally  eliminated. 
You  cannot  honestly  hold  out  to  a  young  man 
the  prospect  of  a  diplomatic  career,  if  you  can- 
not ensure  his  advancement  above  the  rank  of 
Secretary  of  Embassy,  and  when  superannu- 
ated, the  right  of  retirement  under  a  pension. 
For  the  reasons  before  indicated,  there  can  be 
no  guarantee  of  a  sure  berth  or  an  Embassy,  ex- 
cept in  case  of  conspicuous  merit  and  unusual 
fitness  for  the  particular  post  to  be  filled,  as 
in  the  case  of  Mr.  Fletcher,  appointed  Ambassa- 
dor to  Mexico. 

Rich  men  It  may  be  objected  that  such  a  condition  of 

aTdipiomats  affairs  virtually  means  that  only  rich  men  can 
afford  to  represent  their  country  abroad.  This 
does  not  necessarily  follow,  however,  though 
it  is  a  fact  that  American  diplomats  have  in 
many  posts  been  notoriously  underpaid.  It  is 
obviously  incumbent  on  the  Government  to 
provide  permanent  Embassies  and  Legations, 
properly  maintained  as  residences  for  its  repre- 
sentatives, in  order  that  they  may  worthily  up- 
hold the  dignity  of  the  country;  and  also  com- 


DEMOCRACY  AND  DIPLOMACY        197 

pensate  them  sufficiently  to  enable  them  to 
render  their  services  without  personal  sacrifice. 
It  should  be  remarked,  however,  in  passing, 
that  it  would  undoubtedly  be  a  misfortune  if 
diplomatic  posts  were  so  well  paid  as  to  be  an 
object  for  greedy  politicians. 

In  regard  to  the  positions  of  Secretaries  of  Secretaries  of 
Embassies  and  Legations,  which  also  should  be  an^  a! 
well  paid,  if  men  of  ambition  are  unwilling  to  Legations 
risk  their  careers  in  so  uncertain  a  service,  then 
the  United  States  must  be  content  with  such 
men  as  can  be  obtained.  But,  as  a  matter  of 
fact,  there  are  always  to  be  found  plenty  of 
men  of  ability  who,  either  because  of  inde- 
pendent means  or  the  desire  for  foreign  experi- 
ence and  special  opportunities,  are  perfectly 
willing  to  take  these  lesser  posts.  It  is  true 
that  some  of  them  will  be  keenly  disappointed 
because  of  a  failure  to  secure  promotion;  but 
it  cannot  be  charged  that  they  have  been  mis- 
led into  believing  that  they  had  been  assured  a 
permanent  career,  or  eligibility  for  appoint- 
ment whenever  a  vacancy  should  occur  at 
London  or  Paris. 

The  position  taken  here  should  not  be  inter-  j^erit  should 
preted    as   favoring   the   elimination   of  merit  recognized 


198          INTERNATIONAL  REALITIES 

from  the  Diplomatic  Service,  or  a  plea  for  the 
"Spoils  System."  Exceptional  merit  should,  of 
course,  be  rewarded  where  men  have  rendered 
diplomatic  services  of  special  value,  and  when 
their  retention  is  essential  for  the  best  inter- 
ests of  the  country.  But  even  in  such  cases  it 
rests  necessarily  with  the  President  and  the 
Secretary  of  State  to  determine  who  may  have 
proved  worthy  of  special  recognition. 

"Spoils  Nothing  could  be  more  reprehensible  than  the 

Bryan  conception  of  finding  well-paid  jobs  for 
"deserving  Democrats."  But  where  the  Presi- 
dent may  desire  to  single  out  men  of  his  own 
Party  who  are  in  sympathy  with  his  poli- 
cies and  conspicuously  fitted  to  represent  the 
United  States  abroad,  there  is  nothing  inher- 
ently objectionable  to  his  having  the  freedom 
to  make  such  appointments. 

Summary  By  way  of  summary  our  considerations  of  the 

relation  of  Democracy  to  Diplomacy  have  led 
us  to  the  three  following  general  conclusions: 

I.  First  of  all,  it  is  a  fundamental  error  to 
confuse  Diplomacy  as  a  profession  with  the 
policies  it  may  be  called  on  to  execute;  to  iden- 
tify the  agent  with  the  principal;  to  centre 
criticism  on  the  instrument  rather  than  on  the 


DEMOCRACY  AND  DIPLOMACY       199 

man  who  wields  it.  The  methods  of  Diplomacy 
will  depend  primarily  on  the  personalities  of 
the  statesmen  responsible  for  the  conduct  of 
foreign  affairs.  The  policy  which  may  guide 
these  statesmen  and  a  nation  as  a  whole  may 
be  good  or  bad,  wise  or  imprudent,  far-sighted 
or  opportunistic,  courageous  or  cowardly. 

II.  The  determination  of  a  nation's  policy, 
whether  in  time  of  calm  or  of  international 
storm,  must  rest  largely  in  the  hands  of  the  re- 
sponsible representatives  chosen  by  Democracy 
to  safeguard  the  nation's  interests.    The  secrecy 
required  to  protect   and  forward  national  in- 
terests,   the   comprehensive    knowledge   of  all 
the  factors  involved,  the  breadth  of  vision,  the 
pertinacity  of  purpose,  the  sense  of  responsi- 
bility to  future  generations  as  well  as  to  the 
present  generation,  all  forbid  the  efficient  man- 
agement of  a  nation's  vast  interests  by  dis- 
cussion in  the  market-place.    The  "Democrati- 
zation  of  Foreign   Policies"   therefore  cannot 
mean  that  Democracy,  by  a  process  of  Initia- 
tive and  Referendum,  would  commit  the  folly 
of  refusing  confidence  and  support  to  its  re- 
sponsible   statesmen    in    times    of    diplomatic 
complications  and  international  danger. 

III.  The  large  measure  of  freedom  which 


200         INTERNATIONAL  REALITIES 

necessarily  must  be  granted  the  President  in 
his  conduct  of  foreign  relations  must  also 
logically  include  the  greatest  freedom  in  his 
choice  of  diplomatic  agents  for  the  execution 
of  policies  and  the  most  effective  representation 
of  American  interests.  This  means,  of  course, 
that  a  classified,  permanent,  Diplomatic  Ser- 
vice— at  least  at  the  present  stage  of  the  coun- 
try's development — is  decidedly  unwise  and 
undesirable.  Conspicuous  merit  should  be 
recognized,  and  bad  appointments  vigorously 
condemned.  The  American  people  have  the 
right  and  the  obligation  to  insist  on  a  high 
standard  of  Diplomacy  and  Diplomatic  ap- 
pointments. It  still  remains  fundamentally 
true,  however,  that  democracy,  for  its  own 
good,  must  not  attempt  to  embarrass  the  Presi- 
dent and  his  advisers  in  their  conduct  of  for- 
eign affairs.  It  should  frankly  acknowledge — 
as  it  usually  has  been  ready  to  acknowledge — 
in  a  loyal  patriotic  manner,  its  own  inherent 
incapacity  for  Diplomacy. 


CHAPTER  X 
THE  SUBSTITUTION  OF  LAW  FOR  WAR 

The  horrors  of  modern  warfare  have  driven  The  horror  of 
many  of  its  immediate  victims  insane.  There  * 
is  small  excuse,  however,  for  those  who,  far 
from  the  battle-field,  have  been  so  impressed  by 
the  terrible  losses  and  suffering  that  they  have 
lost  the  capacity  to  reason.  Such  persons  can 
find  no  rational  justification  for  war.  They 
regard  it  as  an  anachronism,  a  reversion  to 
savagery.  In  dealing  with  the  great  problems 
raised  by  the  Great  War,  they  are  of  as  little 
service  as  would  be  a  surgeon  who  should  allow 
his  mind  to  be  diverted  by  the  agony  of  the 
victim  of  cancer  from  the  problem  of  its  cure 
and  its  prevention.  They  seem  incapable  of 
analyzing  the  causes  of  war,  or  vaguely  at- 
tribute it  to  Militarism,  greed,  and  passion. 
It  is  enough  that  war  is  horrible;  therefore  it 
is  without  excuse. 

Realizing  the  insufficiency  of  this   kind   of  Duelling  and 
reasoning,  some  fall  back  on  the  false  analogy 
that  as  men  have  abandoned  duelling,  so  na- 

201 


202          INTERNATIONAL  REALITIES 

tions  should  abandon  war.  Without  under- 
standing the  limitations  of  Arbitration,  they 
are  convinced  that  it  is  an  adequate  substitute 
for  the  duel  of  war.  We  have  seen  how  feeble 
and  inadequate  is  Arbitration  for  the  settle- 
ment of  most  of  the  disputes  which  are  the 
efficient  cause  of  war.  As  for  duelling,  a  little 
reflection  should  convince  one  that  modern 
warfare  is  not  in  any  way  like  the  duel;  it  is 
not  a  jousting  match,  a  chivalric  contest  be- 
tween plumed  knights.  Moreover,  if  by  re- 
ferring to  the  abolition  of  duelling  one  means 
that  society  no  longer  condones  acts  of  self- 
redress,  he  is  bound  to  show  that  international 
society  has  reached  that  advanced  stage  of 
development  where  self-redress  is  no  longer 
necessary.  Self-redress  under  the  Common 
Law  was  not  reprobated  or  forbidden,  as  in 
cases  of  the  distraining  of  cattle,  until  the  Law 
itself  afforded  adequate  protection  and  remedy. 
It  may  well  be  questioned  whether  in  certain 
instances  of  gross  slander,  or  attacks  on  the 
person  or  the  honor  of  a  woman,  modern  society 
has  really  provided  a  satisfactory  substitute 
for  self-redress.  One  may  well  doubt  whether 
the  legal,  peaceful  method  does  not  often  savor 
of  coarse  materialism,  and  dull  the  finer  sen- 


SUBSTITUTION  OF  LAW  FOR  WAR    203 

sibilities.  However  that  may  be,  the  history 
of  any  society — the  Western  Frontier  of  forty 
years  ago,  for  example — will  reveal  that  self- 
redress  has  every  justification  so  long  as  society 
is  unable  to  provide  swift,  satisfactory  means 
of  litigation,  adequate  punishment  for  wrong- 
doing, and  the  effective  prevention  of  nuisance, 
disorder,  and  crime.  In  the  West,  hanging  for 
horse  stealing  and  drastic  measures  of  retribu- 
tion for  wrong-doing  formerly  had  the  moral 
approbation  of  such  public  opinion  as  then 
existed.  So,  likewise,  with  international  soci- 
ety; it  has  by  no  means  reached  that  stage  of 
development  where  it  can  with  safety  dispense 
with  the  right  of  self-redress.  The  evolution 
of  an  adequate  system  of  law  to  administer 
international  justice,  the  establishment  of 
courts  empowered  to  interpret  such  law,  and 
the  creation  of  the  means  of  its  enforcement 
without  endangering  the  rights  of  States,  all 
this  remains  yet  to  be  accomplished  before  the 
right  of  international  self-redress  can  reason- 
ably be  abolished. 

A   fundamental   error   in   the    reasoning   of  what  is 
peace  extremists  who  so  confidently  urge  dis-  r 
armament,     the     abolition     of     international 
"duels/'    the    substitution   of  Arbitration    for 


204         INTERNATIONAL  REALITIES 

war,  and  the  establishment  of  "leagues  to  en- 
force peace,"  would  seem  to  lie  in  a  failure  to 
understand  the  very  nature  of  peace  itself. 
They  would  appear  to  regard  peace  as  some- 
thing to  be  willed,  to  be  had  if  men  only  desire 
it.  They  speak  of  it  as  something  tangible, 
to  be  sought  after,  overtaken,  and  captured. 
No  elaborate  argument  is  required  to  show  that 
peace  is  essentially  a  state,  a  result.  Like  vir- 
tue or  contentment,  it  comes  with  honorable 
conduct,  with  righteous  behavior.  Like  plea- 
sure, "it  is  only  a  by-product."  Peace  cannot 
be  divorced  from  righteousness.  It  is  to  be 
had  only  when  men  rectify  wrong,  punish  evil- 
doers, and  guarantee  justice  to  all.  There  is 
a  "divine  discontent"  which  can  never  tolerate 
with  self-respect  a  "peaceful"  condition  of 
affairs  based  on  cruelty  and  injustice. 

The  horrors  We  need  again  to  remind  ourselves  of  con- 
ditions within  our  own  borders  where  strikes, 
and  civil  warfare  even,  have  lasted  for  weeks 
and  months,  as  in  Colorado  and  West  Virginia. 
Where  society  has  been  negligent  or  unwilling 
to  provide  adequate  agencies  for  the  investi- 
gation of  the  rights  and  wrongs  of  Labor  and 
Capital,  it  should  not  lift  its  hands  in  holy  hor- 
ror if  violence  occurs,  and  peace  is  not  to  be 


SUBSTITUTION  OF  LAW  FOR  WAR    205 

had.  We  are  bound  to  recognize  that  indus- 
trial conditions  may  exist  where  the  struggle 
for  mere  existence  is  painful;  where  life  becomes 
a  burden;  where  crime  and  vice  abound;  and 
where  peace  is  a  hideous  mockery.  There  is 
bodily  suffering  and  mental  anguish  that  far 
exceed  the  sufferings  and  anguish  of  warfare. 
There  are  horrors  of  peace  as  well  as  of  war. 
All  this  we  are  constrained  to  acknowledge, 
and  seek,  as  far  as  we  are  able,  to  eradicate  the 
wrongs,  the  cruelties,  and  the  injustice  that 
often  render  peace  impossible  and,  at  times, 
even  undesirable. 

The  catastrophe  which  has  overwhelmed  The 
Europe  has  also  overwhelmed  thinking  men  the 
world  over.  It  is  entirely  inexplicable  to  many. 
It  seems  to  threaten  the  very  foundations  of 
International  Law,  and  to  forever  discredit 
Christianity  itself.  The  situation  is  unques- 
tionably discouraging;  but  it  is  not  the  irra- 
tional situation  many  would  have  it  appear. 
Men  of  finite  intelligence  cannot  accurately 
measure  all  the  factors  that  influence  the  des- 
tinies either  of  individuals  or  nations.  They 
may  learn  from  practical  experience  and  from 
history,  however,  that  there  is  a  reason  behind 


206         INTERNATIONAL  REALITIES 

all  phenomena,  whether  of  nature,  or  society. 
We  know  that  scientific  methods  of  investiga- 
tion will  generally  reveal  the  immediate  or 
primary  cause  behind  every  effect. 

It  is  in  this  dispassionate,  scientific  manner 
that  we  should  approach  the  investigation  of 
international  phenomena.  In  the  midst  of  his- 
torical obscurity,  of  diplomatic  chicanery,  of 
the  din  of  battles,  and  the  heat  of  passion,  we 
are  able  to  discern  some  of  the  causes  that  lead 
men  to  substitute  war  for  law.  Just  as  the 
physician  ignores  external  symptoms  and  goes 
direct  to  the  physical  causes  of  disease,  so,  also, 
the  international  diagnostician  is  not  misled 
by  the  external  manifestations  of  the  ills  of  na- 
tions. He  knows  full  well  that  whatever  men 
may  think,  say,  or  do,  controversies  between 
nations  which  often  lead  to  war  usually  have  a 
definite,  deep-seated  cause.  They  are  not  arti- 
ficial, the  product  of  an  excited  imagination. 
He  knows  that  the  body  politic  has  its  ills  as 
well  as  the  human  body.  He  knows  that  what 
is  often  most  needed  is  not  psychic  treatment 
or  exorcism,  but  drastic  measures,  sometimes 
involving  the  shedding  of  blood. 
European  ^o  the  scientific  student  of  international 

catastrophe 

explicable         affairs,  therefore,  it*  is  not  at  all  inexplicable 


SUBSTITUTION  OF  LAW  FOR  WAR    207 

that  Europe  should  now  be  racked  with  a  con- 
suming fever,  agonizing  pains,  and  sufferings 
almost  beyond  the  power  of  endurance.  The 
wonder  is  that  Europe  has  not  sooner  suc- 
cumbed to  the  diseases  preying  on  its  vitals.  A 
failure  to  live  sanely  in  obedience  to  sound 
principles  of  health  must  inevitably  entail  sick- 
ness and  death.  It  is  because  the  statesmen  of 
Europe  have  repeatedly  ignored  and  affronted 
the  sound  principles  of  international  health 
that  their  nations  now  find  themselves  brought 
so  low. 

Charles    Dupuis,    in    his    remarkable   book,  Balance  of 
L'Equilibre  Europeen,  makes  the  following  vig- 
orous statement: 

The  experience  of  three  centuries  has  demonstrated 
that,  far  from  insuring  respect  for  the  rights  of  all,  the  prin- 
ciple of  the  Balance  of  Power  resulted  merely  in  causing 
the  powerful  States  to  concede  that  every  acquisition  of 
territory  made  by  one  of  them  might  justify  equivalent 
acquisitions  on  the  part  of  the  rest.  .  .  .  Powerless  to  in- 
troduce peace  and  justice  into  international  relations,  it 
has  veiled  with  specious  and  virtuous  pretexts  unjust 
ambitions,  baleful  wars,  and  veritable  operations  of  brig- 
andage.1 

And  Lawrence,   in  Principles  of  International 
Law,  also  adds  his  severe  word  of  indictment 
1  P.  96.  * 


208         INTERNATIONAL  REALITIES 

of  the  vicious  "principle"  which  has  heretofore 
governed  the  counsels  of  Europe: 

It  takes  no  account  of  any  other  motives  of  state  policy 
than  the  personal  aggrandizement  of  rulers  and  the  ter- 
ritorial extension  of  States.  It  distributes  provinces  and 
rounds  off  the  boundaries  of  kingdoms  without  regard  to 
the  wishes  of  the  populations  and  their  affinities  of  race, 
religion,  and  sentiment.1 

These  denunciations  are  probably  too  sweeping 
in  character,  as  restrictive  measures,  and  fresh 
groupings  of  nations  may  at  times  have  been 
a  necessity  to  self-protection  against  certain 
aggressive  and  unprincipled  nations.  It  would 
seem  clear,  however,  that  the  mischievous 
and  lamentable  results  of  the  Congresses  of 
Vienna  and  Berlin  should  have  been  a  sufficient 
warning  to  Europe.  It  is  incredible  that  schem- 
ing diplomats  should  have  parcelled  out  im- 
mense territories  as  a  grocer  cutting  cheese,  and 
apportioned  the  populations  of  the  different 
countries  as  cattle  drivers  at  a  market.  And 
yet  this  vicious  idea  is  again  at  work.  Men 
to-day  are  pointing  out  the  danger  of  permit- 
ting Russia  to  expand  farther.  They  are  plead- 
ing the  necessity  of  dividing  Germany  as  a 
safeguard  for  the  peace  of  Europe !  Accord- 

1  Principles  of  International  Law,  3d  ed.,  p.  129. 


SUBSTITUTION  OF  LAW  FOR  WAR    209 

ing  to  this  pernicious  doctrine,  if  the  popula- 
tion of  a  given  State  should  outstrip  the  popu- 
lation of  a  neighboring  State,  or  if  one  should 
become  vastly  more  wealthy  than  the  other, 
there  must  then  be  a  new  readjustment  of  ter- 
ritory to  re-establish  a  balance ! 


Such  reasoning  is  preposterous.    There  never  Futility  of 

Balanci 
Power 


can  be  among  nations,  any  more  than  in  the  Balance 


physical  world,  or  in  human  affairs,  a  stable 
equilibrium  of  forces.  Nothing  is  permanent 
in  international  affairs;  but  there  is  no  reason 
why  nations  should  not  honestly  try  to  do  jus- 
tice to  each  other's  legitimate  interests.  There 
is  no  reason  why  they  should  not  obey  sound 
principles  when  confronted  with  the  solemn 
responsibility  of  tracing  anew  the  boundaries 
of  Europe.  The  maintenance  of  a  "balance  of 
power"  has  proved  as  futile  as  it  has  proved 
vicious.  It  would  now  seem  high  time  to  aban- 
don the  pursuit  of  this  ignis  fatuus. 

If  it  be  contended  that  Europe  cannot  tol-  Rights  of 
erate  the  menace  of  ^Pan-Germanism,  or  Pan- 
Slavism,  the  answer  that  history  repeats  in 
melancholy  tones  is,  that  it  is  more  dangerous 
to  thwart  nationalistic  aspirations  than  to  per- 
mit their  natural,  normal  realization.  Europe 


210         INTERNATIONAL  REALITIES 

has  less  to  fear  from  the  recognition  of  the  le- 
gitimate desires  of  outraged  nationalities  than 
from  the  cynical  denial  of  such  claims.  There 
can  be  no  true  peace  nor  any  justification  for 
peace  that  is  not  based  on  the  sound,  righteous 
principle  of  respect  for  the  legitimate  claims 
and  interests  of  every  nation,  whether  con- 
quered or  victorious,  small  or  great.  The  Great 
War  will  have  been  largely  in  vain  if  the  nations 
concerned  invoke  again  the  iniquitous  princi- 
ple of  the  Balance  of  Power  when  they  assem- 
ble to  remake  the  map  of  Europe. 

Sound  If  the  principle  of  the  Balance  of  Power  has 

failed  hitherto  to  insure  peace,  what,  then,  are 
the  principles  which  should  be  applied  in  laying 
the  foundations  of  peace  and  of  the  law  which 
must  regulate  the  peaceful  relations  of  States  ? 

Community  of      I.     First  of  all  there  is  the  basic  principle  of 

interests  ti  •  /.  .  >;     i          «i       i         r 

community  or  interests,  that  body  of  con- 
victions" which  justifies  the  existence  of  sep- 
arate, autonomous  nations.  I  have  endeavored 
to  suggest  in  the  chapter  on  Nationalism  the 
various  factors  which  must  be  taken  into  ac- 
count in  determining  this  community  of  in- 
terests. We  have  seen  that  they  may  be 
roughly  classified  as:  (i)  pyschological,  accord- 


SUBSTITUTION  OF  LAW  FOR  WAR    211 

ing  to  racial  or  temperamental  preferences  and 
prejudices;  (2)  political,  according  to  instinc- 
tive preferences  for  different  political  institu- 
tions; (3)  economic,  according  to  the  peculiar 
needs  of  .various  peoples;  and  (4)  ethical,  as 
concerning  the  national  pursuit  of  ideals.  It 
is  evident  that  all  these  factors  must  be  duly 
weighed  and  respected  in  any  attempt  to  re- 
construct the  map  of  Europe.  It  is  not  easy, 
of  course,  to  determine  with  any  precision  the 
community  of  interests  that  leads  men  to  pre- 
fer one  nation  to  another.  The  factors  men- 
tioned are  not  only  difficult  to  measure,  but 
are  even  at  times  antagonistic.  An  instance  of 
this  is  found  in  Trieste,  where  Italian  national- 
istic interests  and  Austrian  economic  interests 
are  in  conflict.  The  reconciliation  of  such  con- 
flicting interests  in  some  just  compromise  as 
the  establishment  of  a  "free  port,"  for  example, 
demands  the  highest  statesmanship.  The  gen-  • 
erous,  tolerant  spirit  of  mutual  respect,  however, 
of  "give  and  take,"  should  never  render  even 
such  situations  incapable  of  a  fair  solution. 

The  wishes  of  the  peoples  immediately  con-  Plebiscites 
cerned  must,  of  course,  be  given  first  considera- 
tion   in    any    alteration    of  boundaries.      The 
principle    of   a    plebiscite    to    ascertain    their 


212         INTERNATIONAL  REALITIES 

preferences  is  unmistakably  just  though  not 
always  possible  of  application.  Germany  at 
first  recognized  this  in  respect  to  Northern 
Schleswig  and  subsequently  repudiated  her 
pledge.  The  inhabitants  of  the  Danish  West 
Indies  have  a  right  to  be  consulted  before  the 
Islands  are  made  the  subject  of  barter.  If  a 
certain  territory  offers  peculiar  economic  or 
strategic  advantage  to  a  given  nation,  however, 
the  inhabitants  of  such  territory  must  not  be 
permitted  in  a  spirit  of  narrow  provincialism 
to  decide  the  larger  questions  at  issue.  The 
right  of  the  people  on  the  coast,  for  example,  to 
prevent  the  cession  or  the  free  use  of  a  port  to 
the  people  of  the  hinterland  should  obviously 
be  given  but  slight  consideration.  In  a  similar 
way,  Colombia  was  entitled  to  little  sympathy 
in  its  pretensions  to  stand  in  the  way  of  the 
establishment  of  interoceanic  communication 
across  the  international  highway  of  Panama  by 
the  nation  most  vitally  concerned  and  best 
able  to  accomplish  the  task. 

Conflicts  of          There  will  inevitably  arise  serious  conflicts 

interests  r   •  •,  »  i 

ot  interests  and  great  issues  concerning  such 
strategic  points  as  Panama,  Gibraltar,  Constan- 
tinople, and  elsewhere.  It  will  be  difficult  in 
many  instances  to  determine  with  justice  the 


SUBSTITUTION  OF  LAW  FOR  WAR    213 

exact  nature  and  relative  value  of  national 
community  of  interests.  Whatever  the  diffi- 
culties may  be,  it  would  seem  clear  that  the 
principle  of  the  recognition  of  national  com- 
munity of  interests  should  be  the  solid  basis 
of  all  attempts  to  recast  the  boundaries  of  na- 
tions. As  a  sound,  scientific  principle  for  the 
foundation  of  peace  and  International  Law  it 
can  safely  challenge  the  cynical,  disastrous 
principle  of  the  Balance  of  Power. 

II.  The  second  great  principle  which  should  Principle  of 
be  observed  in  many  instances,  is  that  of 
Autonomy,  the  granting  of  the  right  of  com- 
plete local  self-government.  There  may  be  in- 
superable difficulties  in  the  way  of  conceding 
fully  the  claims  of  the  Poles,  Bohemians, 
Hungarians,  Armenians,  and  others  to  inde- 
pendent national  existence.  Association,  union, 
and  any  form  of  forcible  inclusion  with  other 
peoples  may  be  most  repugnant.  It  may  be 
made  endurable,  however,  by  the  application 
of  the  principle  of  Autonomy.  This  principle 
would  probably  afford  a  fairly  adequate  solu- 
tion of  nationalistic  problems  in  most  instances, 
even  in  the  case  of  Alsace-Lorraine.  Further- 
more, we  should  bear  in  mind  the  fact  that  a 
State  like  Canada,  though  remaining  an  inte- 


214         INTERNATIONAL  REALITIES 

gral  portion  of  the  Empire,  might  yet  enjoy  a 
separate,  autonomous  status  entitling  it  to  some 
form  of  international  recognition.  The  very 
least  concession  which  prudence  and  justice 
exact  is  the  granting  of  the  just  claims  of  men 
of  all  races  and  nationalities  to  a  full  measure 
of  self-government.  In  the  recognition  of  this 
principle  lies  one  of  the  chief  guarantees  of  en- 
during peace. 

Principle  of          III.     The  third  great  principle  which  should 

Freedom  of        t  1     .  •  r    i 

Trade  t>e  respected  in  the   reconstruction  or   boun- 

daries is  that  of  International  Freedom  of 
Trade.  There  are  natural  reasons,  as  we  have 
seen,  why  men  should  prefer  the  maintenance 
of  national  frontiers.  The  creation  of  tariff 
frontiers,  however,  leads  to  artificial  differences 
and  international  controversies  which  are  hard 
to  justify.  A  tariff  war,  in  its  pressure  and 
powers  of  economic  strangulation,  as  in  the  case 
of  Serbia  at  the  hands  of  Austria,  though  not 
spectacular  is  quite  as  real  as  actual  warfare. 
The  announced  intention  of  the  Entente  Allies, 
therefore,  to  concert  measures  of  economic  de- 
fense against  the  Teutonic  Powers,  after  the 
Great  War,  is  merely  another  way  of  continu- 
ing the  war.  It  thus  constitutes  a  grave  men- 


SUBSTITUTION  OF  LAW  FOR  WAR    215 

ace  to  the   re-establishment   of  the   peace   of 
Europe.    It  cannot  be  too  severely  condemned. 


While  it  is  plainly  the  interest  of  each  na-  Economic 

inter- 
dependence 


tion  to  make  itself  as  self-supporting  and  self-  mter" 


sufficient  as  possible,  nations  are  bound  to  be 
economically  interdependent  in  many  respects. 
Freedom  of  exchange  in  certain  products  is 
almost  a  vital  necessity.  They  may  achieve  a 
certain  degree  of  independence  by  erecting 
legislative,  protective  boundaries,  but  they 
do  so  only  at  the  cost  of  bitter  antagonisms. 
History  shows  how  lamentable  and  futile  have 
been  the  Chauvinistic  attempts  of  such  nations 
as  Spain  and  England  to  maintain  an  exclusive 
control  of  the  trade  of  colonies,  for  example. 
Economic  weapons  in  such  instances  are  merely 
substituted  for  the  cruder  weapons  of  inter- 
national warfare. 

The  importance  of  this  principle  of  Inter-  "Commercial 
national  Freedom  of  Trade  is  to  be  seen  in  Access" 
connection  with  such  an  abnormal  situation  as 
Trieste.     Whether  that  Port  should  belong  to 
Italy  or  Austria  would  not  very  much  matter, 
provided  it  remained  a  "free  port."     So,  like- 
wise,  with   Serbia:    if   access  to   the  Adriatic 
through  the  actual  possession  of  a  port  like 


216         INTERNATIONAL  REALITIES 

Durazzo  should  not  prove  feasible,  the  guar- 
antee at  least  of  the  "commercial  freedom  of 
access,"  formerly  suggested  by  the  Powers, 
would  be  eminently  just. 

wide  It  will  be  seen  that  the  extension  of  this 

application  of  •••1*11  11  i 

principle  economic  principle,  either  through  the  removal 
of  tariff  frontiers  or  the  creation  of  "free 
ports,"  is  of  the  greatest  importance  for  inter- 
national peace.  One  of  its  chief  virtues  is  its 
applicability  to  widely  divergent  situations. 
If  the  Poles,  for  example,  could  not  properly 
lay  claim,  at  this  late  day,  to  a  complete  na- 
tional restoration,  perfect  freedom  of  trade 
with  their  neighbors  would  do  much  to  recon- 
cile them  to  their  qualified  international  status. 
Should  it  prove  possible,  on  the  other  hand,  to 
recognize  the  right  of  a  people  to  a  separate, 
national  existence — the  Serbs  or  the  Hunga- 
rians, for  example — perfect  freedom  of  trade 
would  doubtless  be  necessary  to  enable  them 
effectively  to  maintain  their  political  indepen- 
dence. 

Three  It  is  interesting  to  note,  by  way  of  sum- 

mutuaUy8         niary,  how  fully  these  three  fundamental  prin- 

compiemen-      ciples  complement  each  other.    The  recognition 

of  Community  of  Interests  is  of  primary  im- 


SUBSTITUTION  OF  LAW  FOR  WAR    217 

portance,  and  logically  implies  political  inde- 
pendence. The  recognition,  however,  of  the 
principle  of  Autonomy,  the  right  of  local  self- 
government,  may  make  it  possible  to  recognize 
a  national  community  of  interests  without  con- 
ceding full  political  independence  in  the  sense 
generally  laid  down  by  writers  on  International 
Law.  In  any  event,  the  recognition  of  the 
principle  of  International  Freedom  of  Trade 
will  go  far  toward  enabling  these  organized 
States,  whether  independent  or  autonomous, 
to  work  out  successfully  their  special  prob- 
lems, and  live  in  harmony  with  their  neigh- 
bors. 

If  the  Great  Powers  undertake  the  momen-  Terms  of 
tous  task  of  recasting  the  map  of  Europe  in  peace 
a  spirit  of  revenge,  of  passion-blinded  adher- 
ence to  the  utterly  vicious  principle  of  the  Bal- 
ance of  Power,  they  will  only  have  sown  the 
seeds  of  future  wars.  The  fearful  conflict  will 
have  been  in  vain.  If  they  are  prepared,  how- 
ever, to  face  their  sacred  responsibilities  with 
the  earnest  desire  "to  deal  justly"  with  each 
other  in  obedience  to  generous,  sound,  scien- 
tific principles,  this  ghastly  war,  in  its  rectifica- 
tion of  centuries  of  wrong,  will  have  proved  an 
incalculable  blessing  to  the  world. 


2l8 


INTERNATIONAL  REALITIES 


Rights  and 
obligations 


Assuming  that  the  nations  of  the  world  are 
now  prepared  to  lay  the  solid  foundations  of 
permanent  peace  and  of  a  scientific  system  of 
International  Law,  we  still  encounter  other 
difficulties  of  a  serious  character.  The  first 
requisite  for  political  association  is  a  common 
conception  of  rights  and  obligations.  There 
can  be  no  satisfactory  system  of  law,  no  courts, 
no  enforcement  of  law  on  any  other  basis. 
This  truth  is  often  forgotten  when  we  speak 
of  bringing  about  some  form  of  international 
organization.  There  is  an  unfortunate  ten- 
dency to  argue  that  the  causes  of  international 
friction  and  antagonisms  will  be  removed  at 
once  by  nations  merely  "getting  together." 
The  necessity  of  common  ideas  of  right  and 
wrong,  of  identic  ideals  of  justice,  as  well  as  of 
a  common  abhorrence  of  war,  is  not  at  all 
clearly  recognized. 

Whatever  the  right  or  wrong  of  the  Great 
War,  it  is  lamentably  clear  that  there  exists 
a  most  serious  divergence  of  views  between 
the  opposing  nations  in  respect  to  the  rights 
and  obligations  of  States.  The  Prussian  valu- 
ation of  treaties,  for  example,  is  of  such  a  na- 
ture as  to  constitute  a  grave  menace  to  the 
peace  of  the  whole  world.  International  rela- 


SUBSTITUTION  OF  LAW  FOR  WAR    219 

tions  cannot  peacefully  be  maintained  without 
a  due  regard  for  treaty  engagements,  and  par- 
ticularly for  the  rights  of  weaker  and  smaller 
nations.  The  only  other  alternative  is  a  per- 
petual state  of  war,  whether  of  actual  combat, 
or  the  terrific  strain  of  armaments.  Interna- 
tional Law  cannot  be  built  on  foundations 
laid  in  accordance  with  the  Prussian  theory 
of  rights  and  obligations.  Before  we  can  have 
a  normal,  logical  evolution  of  the  law  of  na- 
tions, we  must  be  agreed  on  its  basic  princi- 
ples. Germany  and  the  United  States,  Italy 
and  Japan,  Russia  and  China,  Brazil  and 
France — all  the  nations  of  the  world — must 
first  think  fundamentally  alike  before  they  can 
trust  each  other,  "pool  their  interests,"  and 
unite  firmly  within  an  international  system  of 
law. 

To  state  this  fact  is  to  suggest  the  enormity  Need  of 
of  the  task.  General  education  and  the  culti- 
vation  of  closer  intimacies  and  interests  can 
alone  bring  nations  to  think  alike.  It  will 
probably  require  a  very  long  time  for  nations 
to  learn  to  trust  each  other  within  a  common 
organization  capable  of  legislating  wisely  con- 
cerning vital  interests  of  mutual  concern.  The 
administration  of  justice  between  them  can- 


220         INTERNATIONAL  REALITIES 

not  be  had  until  they  are  agreed  on  fundamen- 
tal principles  of  law.  The  people  of  the  United 
States,  sharing  fairly  similar  notions  of  justice 
and  possessing  a  model  Constitution,  were  un- 
able to  avoid  the  Civil  War.  Let  us  therefore 
not  be  so  foolish  as  to  believe  that  the  diverse 
nations  of  the  world  have  yet  reached  that 
stage  of  development  and  capacity  for  politi- 
cal organization  where  justice  can  be  effectively 
administered  and  law  be  substituted  for  war. 

status  of  When  we  appreciate  fully  the  significance  of 

International      t^jg   ^^   Q£  ^   utter   Jac](   QjT  a   common   con_ 

ception  of  rights  and  obligations  between  na- 
tions, we  find  nothing  extraordinary  in  recog- 
nizing that  International  Law  is  still  in  a  rudi- 
mentary stage  of  development.  It  is  true,  of 
course,  that  the  courts  of  most  nations,  arbi- 
tral tribunals — to  a  lesser  extent — and  diplo- 
matic negotiations,  constantly  acknowledge  a 
large  body  of  usage  and  agreements  which  have 
become  incorporated  in  International  Law. 
They  moreover  concede  it  the  full  status  of 
law,  the  followers  of  Austin  to  the  contrary, 
notwithstanding.  There  is  but  a  very  small 
portion  of  the  law  of  nations,  however,  which 
may  be  called  positive  law  in  the  same  sense  as 


SUBSTITUTION  OF  LAW  FOR  WAR    221 

municipal  statute  law.  When  one  considers 
the  vast  field  of  interests  involved  in  interna- 
tional relations,  he  realizes  how  pitifully  small 
is  the  body  of  law  which  may  be  said  to  have 
received  the  positive  assent  of  nations.  Take,  Rights  of 
for  example,  the  single  important  question  of  c°g^Jrs 
the  rights  of  foreign  creditors.  Leading  as  it 
often  does  to  inordinate  demands,  and  even  to 
a  loss  of  national  independence,  this  question 
is  one  of  the  most  dangerous  that  can  arise  be- 
tween nations.  There  is  no  law  whatever,  no 
understanding,  even,  by  which  the  rights  of 
foreign  creditors  may  be  ascertained,  and  the 
proper  procedure  for  the  prosecution  of  their 
rights  prescribed.  (The  Hague  Convention  of 
1907  concerning  the  Recovery  of  Contract 
Debts,  which  justifies  the  use  of  force  to  col- 
lect debts,  and  which  has  failed  of  general  ac- 
ceptance, is  entitled  to  but  slight  considera- 
tion.) Or  take  the  great  field  of  international  international 
torts  where  aliens  have  been  wronged  by  acts 
of  the  State  or  of  its  officials.  Here  again  we 
have  one  of  the  most  fruitful  causes  of  con- 
troversy and  conflict;  and  yet  International 
Law  is  practically  dumb  on  the  whole  subject. 
Consider  that  neglected  and  supremely  im- 
portant portion  of  the  law  of  nations  fitly  en- 


222         INTERNATIONAL  REALITIES 

Conflict  of  titled:  "Conflict  of  Laws,"  where  delicate 
questions  constantly  arise  concerning  rights  of 
national  jurisdiction  and  the  law  to  be  applied. 
Nothing  could  be  more  unreasonable  or  unjust 
than  to  relegate  matters  of  guardianship,  in- 
heritance, and  even  of  domicile  and  national- 
ity, to  the  limbo  of  "Conflict  of  Laws."  They 
are  peculiarly  the  very  questions  which  should 
most  concern  the  law  of  nations.  It  surely  has 
no  raison  d'etre  if  it  cannot  regulate  the  rights 
of  individuals  as  travellers  or  sojourners 
throughout  the  world.  These  are  rights  which 
should  inhere  in  a  person,  not  as  a  Britisher  or 
a  German,  but  as  a  citizen  of  the  world.  This 
whole  field,  however,  is  practically  undevel- 
oped. Some  of  the  European  nations  have 
endeavored  by  special  agreements  to  bring 
order  out  of  chaos;  but  "Conflict  of  Laws" 
still  remains  a  constant  accusation  against  In- 
ternational Law.  And  perhaps  the  greatest 
obstacle  in  the  way  of  regulating  this  portion 
of  the  law  of  nations  is  the  Anglo-American 
school  of  jurisprudence  which  holds  provin- 
cially  to  the  theory  of  the  exclusive  jurisdic- 
tion of  the  territorial  sovereign,  and  to  the  su- 
premacy of  Common  Law.  Nothing  could  more 
clearly  suggest  the  chaos  reigning  in  this  field 


SUBSTITUTION  OF  LAW  FOR  WAR    223 

of  International  Law  than  the  very  situation 
within  the  borders  of  the  United  States,  where 
the  laws  of  forty-eight  different  States  are  in 
conflict. 

I  have  not  taken  into  consideration,  in  this  international 
discussion,  the  law  of  war,  because  of  the  fact  Law  and  war 
that  it  is,  in  final  analysis,  the  very  negation  of 
law  itself.     International  Law  cannot  concern 
itself  with  the  suspension  of  law.     Its  mission 
is  to  regulate  the  peaceful  relations  of  States. 
Our  whole  purpose  has  been  to  consider  the 
law  of  nations  as  a  substitute  for  war. 

As  a  general  result  of  our  endeavors  to  un-  Creation  of 
derstand  the  great  fundamental  realities  of  £^rnational 
international  life,  I  think  it  should  be  apparent 
that  the  creation  of  law  as  an  adequate  substi- 
tute for  war  is  a  laborious  undertaking  that 
calls  for  great  patience,  courage,  wisdom,  and 
faith.  Its  coherent,  natural  growth  cannot  be 
unduly  accelerated.  Nations  may  do  much, 
however,  to  crystallize  into  formal  agreements 
many  principles  of  law  already  accepted  in  part 
in  actual  usage.  Societies  of  International 
Law  may  help  materially  by  their  discussions 
and  propaganda  to  educate  international  pub- 
lic opinion.  Nations  may  thus  come  to  a  com- 


224         INTERNATIONAL  REALITIES 

mon  understanding  on  many  questions  of  vital 
importance  concerning  the  rights  and  obliga- 
tions of  States.  Working  along  different,  con- 
verging lines,  they  may  thus  come  ultimately 
to  the  same  goal — the  realization  of  essentially 
common  conceptions  of  international  justice. 

international        International  conferences,  such  as  gathered 

conferences        ^  yj^  fjague  'm  jg^  anj  J^Q/,  might  do  much 

to  facilitate  the  creation  of  International  Law. 
The  Hague  Conferences,  however,  suffered 
most  unfortunately  from  two  obsessions.  Pre- 
occupied with  thoughts  of  the  coming  Great 
War,  they  devoted  their  energies  principally  to 
the  drafting  of  futile  regulations  to  govern  the 
conduct  of  war.  They  also  attempted  to 
create  courts  of  "arbitral  justice"  before  there 
was  any  agreement  concerning  the  nature  of 
"justiciable"  questions,  or  the  law  to  be  ap- 
plied by  these  courts.  The  notable  failure  of 
the  Hague  Conferences  to  direct  their  energies 
along  the  constructive  lines  of  creating  Inter- 
national Law  to  govern  the  peaceful  relations 
of  States  is  deeply  to  be  deplored.  This  is  the 
real  and  the  arduous  task  which  must  be  under- 
taken; not  fervid  crusades  to  induce  nations 
to  disarm  and  arbitrate.  War  is  a  grewsome — 
and  it  may  be  at  times  an  irrational — method 


SUBSTITUTION  OF  LAW  FOR  WAR    225 

of  settling  disputes.  But  until  we  can  demon- 
strate that  a  thoroughly  effective,  rational  sub- 
stitute for  war  has  been  devised,  nothing  could 
be  more  irrational  than  to  ask  nations  "to 
turn  their  swords  into  ploughshares." 

Human  progress  is  exasperatingly  slow.     It  international 

•  •  •  progress 

requires  many  generations  to  gam  any  con- 
siderable victories  for  civilization.  And  even 
then,  strenuous  battles  must  be  fought  to  hold 
the  ground  already  won.  The  man  who  would 
make  his  effective  contribution  to  the  great 
cause  of  international  good  relations  must 
abandon  abstractions  and  illusions.  Though 
holding  to  his  ideals,  he  must  ask  to  have  his 
eyes  opened  to  a  vision  of  things  as  they  are, 
as  well  as  to  a  vision  of  things  as  they  should 
be.  The  greatest  generals,  scientists,  states- 
men, and  reformers  have  been  those  who,  full 
of  vision  and  faith,  dealt  with  and  overcame 
brute  obstacles  and  crude  facts.  It  is  this  type 
of  man  the  world  most  needs  at  the  present 
time  in  dealing  with  the  great  international 
realities  that  now  confront  us. 

In  conclusion,  I  venture  again  to  reiterate  The  task 
that  "our  task,  therefore,  as  defenders  and  up- 
builders   of   International   Law,    becomes    one 


226         INTERNATIONAL  REALITIES 

of  determining  the  specific  mutual  interests 
which  nations  are  prepared  to  recognize;  and 
then  to  endeavor,  in  a  spirit  of  toleration, 
friendly  concern,  and  scientific  open-minded- 
ness,  to  formulate  the  legal  rights  and  obliga- 
tions which  these  interests  entail.  Having 
come  to  a  substantial  agreement  concerning 
the  law  itself,  we  may  then  properly  turn  to 
the  task  of  securing  the  most  effective  agencies 
for  its  interpretation  and  enforcement.  The 
nations  of  the  earth  are  far  from  ready  to  be 
ruled  by  a  common,  sovereign,  political  author- 
ity. Their  interests  and  ways  of  thinking  are 
still  too  antagonistic  for  that.  The  great  pre- 
liminary work  of  facilitating  closer  relations,  of 
removing  misunderstandings,  of  reconciling  con- 
flicting points  of  view,  of  identifying  various 
interests,  of  fostering  common  conceptions  of 
rights  and  obligations,  remains  yet  to  be  done." 
The  substitution  of  law  for  war  is  a  stupendous 
task.  It  is  therefore  a  most  inspiring  task. 


INDEX 


Agadir,  92. 

Alabama  Arbitration  (see  Geneva 

Arbitration). 
Alaska,  38,  39. 
Albania,  83. 

American    Continent    (see    Pan- 
Americanism)  : 
special  problems  of,  148. 
duty  of  U.  S.  toward,  148. 
organization  of   American  na- 
tions, 170. 

American  Institute  of  Internation- 
al Law,  56,  68. 
American  Society  of  International 

Law,  162. 
Anarchism,  41. 
Andorra,  35. 

Angell,  Norman,  150,  155,  175. 
Arbitration: 

and  International  Law,  19. 
limitations  of,  75,  158. 
ignorance  of,  75. 
Pious  Funds,  87. 
Venezuelan  Preferential  Claims, 

88. 

Japanese  House  Tax,  88. 
Mascat  Dhows,  88. 
Maritime    Boundary    (Norway 

and  Sweden),  88. 
Canevaro  Claim,  88. 
Russian  Indemnity,  88. 
Casablanca,  89. 
Savarkar,  89. 

Carthage  and  Manouba,  89. 
North  Atlantic  Fisheries,  90. 
Dogger  Bank  incident,  91. 
unsuited  for  political  questions, 

93- 
suited  for  unimportant  matters, 

94. 

not  justice,  95. 
a  triumph  for  Diplomacy,  97, 

HS- 

not  understood  by  pacifists,  144. 
not  for  punitive  purposes,  145. 
propaganda  embarrassing  to 

Europe,  146. 
as  a  substitute  for  war,  202. 


Armed  Neutralities,  128. 

Australia,  63. 

Austria-Hungary,  27,  29,  84,  122, 

214,  215. 
Autonomy: 
value  of  principle  of,  213,  217. 

Bahamas,  39. 

"Balance  of  Power,"  32,  82,  165, 

207,  209,  217. 
Balkan  War,  32,  82. 
Bavaria,  63,  66. 
Belgium,  13,  152. 
Belligerents: 

conflict  of  interests  of  neutrals 

with  interests  of,  5. 
Bermudas,  39. 
Bernstorff,  Count  von,  121. 
Elaine,  159. 
Bluntschli,  45. 
Boers,  79. 
Bonfils,72. 
Boundaries,  40. 
Bucharest,  Treaty  of,  83. 
Bulgaria,  49,  83. 

Canada,  14,  63,  66,  213. 
Canevaro  Claim  Arbitration,  88. 
Carthage  and  Manouba   Arbitra- 
tion, 89. 

Casablanca  Arbitration,  89. 
Cattaro,  38. 
Central  America,  171. 
China,  80. 
Colombia,  29,  212. 
Colonial  Empire: 
problem  of,  81. 
"Commercial  Access,"  215.   . 
Commission  of  American  Jurists, 

168. 

Community  of  Interests: 
factors  constituting,  24. 

language,  24. 

religion,  25. 

political  sympathies,  25. 

customs,  traditions,  26. 

economic  factor,  27. 

revenues,  27. 


227 


228 


INDEX 


geographical  factor,  27. 
external  pressure,  29. 
basis  of  Nationalism,   34,   54, 

210. 

conflicts  of  interests,  212. 

Principle  of,  210,  216. 
Confederacy,  the  Southern,  120. 
Conflict   of  Laws    (see  Interna- 
tional Private  Law). 
Congress  of  Berlin,  32,  59,  82,  146, 

208. 

Congress  of  Vienna,  14, 59, 146, 208. 
Constantinople,  28,  40,  no,  212. 
Contract  Debts: 

convention  concerning  recovery 
of,  3- 

need  of  law  concerning,  147,  221. 
Court  of  Arbitral  Justice,  96. 
Cuba,  13,  62,  65. 
Customs,  Traditions,  26. 
Czar  of  Russia,  158. 

Danish  West  Indies,  180, 182,  212. 
Danube  Commission,  109. 
Democracy: 

international  value  of,  44. 
and  Diplomacy,  174,  179,  188, 

198. 

views  of  de  Tocqueville  concern- 
ing conduct  of  foreign  rela- 
tions by,  179. 
value  of  publicity  in,  182. 
importance  of  executive  direc- 
tion of  foreign  affairs  in,  183. 
attitude  of  American  democracy 

toward  foreign  affairs,  184. 
incapacity  for  Diplomacy,  189. 
Denmark,  27. 
Despotism,  41. 
De  Tocqueville,  179,  186. 
Dette  Publique,  in. 
Dickinson,  G.  Lowes,  175. 
Diplomacy: 

and  International  Law,  19. 
Arbitration  a  triumph  for,  97, 

I4S- 
Democracy  and,  174,  179,  188, 

198. 
misapprehension  of  functions  of, 

175- 

merely  an  agent,  176. 
functions  of,  177. 
success  of  American  Diplomats, 
178. 


need  of  secrecy  in,  180. 
comprehensive    knowledge    re- 
quired, 183. 
attitude  of  American  democracy 

toward  foreign  affairs,  184. 
democracy  incapable  of,  189. 
the  Diplomatic  Service,  191, 196. 
Diplomats  should  be  represen- 
tative, 194. 
freedom  of  President  in  choosing 

diplomats,  194. 
permanent  Diplomatic  Service 

undesirable,  196. 
Secretaries   of   Embassies   and 

Legations,  197. 
"Spoils  System,"  198. 
Diplomatic  Settlements: 
concerning  Samoa,  91. 
Anglo-French     agreement     of 

1004,  92. 
Anglo-Russian     agreement     of 

1007,  92- 

Moroccan  agreement,  92. 
Dogger  Bank  Incident,  91. 
Dollar  Diplomacy,  160. 
Duelling,  201. 
Dupuis,  Charles,  207. 


Economic  Factor,  27,  215. 
Economic  Warfare,  37,  214. 
Egypt,  51,  65,  92,  1 88. 
England  (see  Great  Britain). 
Enlistments,  124. 
Equality,  13: 

of  States,  15. 

human  inequalities,  67. 

of  nations,  68. 

corollary  of  right  to  exist,  69. 

based  on  law  of  nature,  70. 

inequalities  of  nations,  70. 

theory  opposed  to  international 
organization,  71. 

theory  unsound,  72. 

definition  of,  72. 
Ethics,  31,  49. 
Ethnology: 

ethnic  and  ethical  ideals,  31. 
European  Problems: 

distinct  from  American,  146. 
Existence: 

of  States,  14,  58. 

"right"  to,  14,  164. 


INDEX 


229 


Nationalism  basis  of  right  to,  60. 
legal  right  to,  60. 
Exterritoriality,  112. 

Finland,  28. 

France,  51,  92,  153,  185,  188. 

Franco-Prussian  War,    121,    130, 

146. 
Freedom  of  Trade,  214,  216. 

Gareis,  Karl: 
definition  of  law,  10. 
definition  of  International  Law, 

it. 

views  on  sanction  of  Interna- 
tional Law,  20,  104. 
Geneva  Arbitration,  95,  97,  120, 

130. 
Germany,  20,  43,  86,  91,  121,  154, 

187,  208,  212,  218. 
Golden  Rule: 
basis  of  International  Law,  21, 

104. 
Great  Britain,  28,  51,  91,  92,  120, 

121, 128, 144, 153, 188,  215. 
Greece,  49. 

Grey,  Sir  Edward,  153,  177. 
Grotius,  7,  130. 
Gypsies,  36. 

Hague  Arbitration  Tribunals,  19. 
Hague  Conventions: 

Rights  and  Duties  of  Neutral 

Powers,  131. 

The  Pacific  Settlement  of  Inter- 
national Disputes,  147. 
Recovery   of    Contract   Debts, 

147,  221. 
Hague  Peace  Conferences,  2,  71, 

145,  147,  158,  224. 
Haldane,  Lord,  154. 
Heligoland,  39. 
"Hinterland"   Doctrine,   38,  39, 

212. 
Holland,  27. 

Independence: 

nature  of  "right,"  61. 
nations  not  truly  independent, 

62. 

not  essential  for  recognition,  62. 
"right"  of,  an  assumption,  63. 
"right,"  the  claim  to  freedom, 

64. 


synonymous  with  sovereignty, 

6s- 
Interests: 

of  States,  56,  58. 

International  Administration,  99: 
existing  agencies  for,  109. 
Danube  Commission,  109. 
Suez  Canal,  109. 
Tangiers,  109. 
Spitsbergen,  109. 
Constantinople,  no. 
Sanitary  Board,  in. 
Dette  Publique,  in. 
exterritoriality,  112. 
international  unions,  112. 
Pan-American  Union,  114. 
International  Bankruptcy,  148. 
International  "Clearing  House," 

114. 

International  Community,  102. 
International     Conferences     and 

Congresses,  104. 

International  Creditors,  148,  221. 
International  Executive,  52,  106. 
International  High  Commission  on 

Uniformity  of  Laws,  169. 
International  Law: 
how  discredited,  i. 
relation  to  war,  3. 
rights  of  neutrals  under,  4. 
true  function  of,  is  to  avert  war, 

6,  223. 

unscientific  in  method,  7. 
wrongly  identified  with  natural 

law,  7. 

definition  of,  n. 
failure  of,  to  define  rights  of 

States,  13. 

fundamental  problem  of,  16. 
value  of,  1 8. 
Diplomacy  and,  19. 
Arbitration  and,  19. 
and  Municipal  Law,  19. 
true  sanction  of,  20. 
true  task  of,  21. 
Golden  Rule  the  basis  of,  21, 

104. 

nationalism  and,  30,  34. 
not  based  on  abstractions,  57, 

74- 

universal  in  application,  61. 
unlike  municipal  law,  103. 
administered  by  national  courts, 
106. 


230 


INDEX 


is  truly  law,  107. 

definition  of  rights  required,  107. 

conflict  of  laws,  107. 

Monroe  Doctrine  a  part  of,  164. 

the  creation  of,  166,  223. 

rights   and    obligations   under, 

218. 

in  a  rudimentary  stage  of  devel- 
opment, 220. 
reconstruction  of,  225. 
International  Legislation: 
need  of,  148,  166. 
rights  of  foreign  creditors,  148, 

221. 

bankruptcy,  148. 

torts,  148. 

rights  of  aliens,  148. 

conferences  for,  224. 
International  Private  Law,   148, 

166,  222. 

International  Prize  Court,  71. 
International  Torts,  107,  148,  221. 
International  Tribunal,  105. 
Internationalism,  33,  103. 
Ireland,  25,  28. 
Italy,  81,  215. 

Japan: 

California  question,  43. 

War  with  Russia,  79. 

House  Tax  Arbitration,  88. 

Dogger  Bank  incident,  91. 

Relations  with  U.  S.,  181. 
Jews,  35,  36. 
"Justiciable": 

meaning  of  term,  96,  224. 

Kant,  loo. 
Korea,  80. 
"Kultur": 

defined  as  Nationalism,  30. 

Lansing,  Secretary,  122. 
Law: 

nature  of,  9. 

purpose  and  definition  of,  10. 

problem  of,  n. 

enforcement  of,  17. 

substitution  of  law  for  war,  173, 
201. 

abandonment  of  duelling  and 
self -redress,  201. 


Law  of  Nature  (Natural  Law) : 

falsely  identified  with  Interna- 
tional Law,  7. 

true  significance  of,  9. 

fallacies  of,  n. 

and  theory  of  equality,  70. 
Lawrence,  T.  J.,  207. 
League  to  Enforce  Peace,  106, 137. 
Loans,  125. 

London  Naval  Conference,  70. 
Lorimer,  James,  21,  31,  41,  44,  53, 
64, 99, 101, 127, 131, 135, 152. 

Maritime   Boundary   Arbitration 

(Sweden  and  Norway),  88. 
Mascat  Dhows  Arbitration,  88. 
Mason  and  Slidell  (Case  of  the 

Trent),  186. 
Mexico,  87, 160, 185. 
Militarism: 

as  a  cause  of  war,  140. 
meaning  of,  141. 
Monroe  Doctrine: 

disquieting  extensions  and  in- 
terpretations of,  161,  195. 
as  interpreted  by  Mr.  Root,  162. 
as  a  sanction  of  International 

Law,  164. 

regarded  as  Pan-American  doc- 
trine, 162,  165. 
as  a  permanent  policy,  195. 
Montenegro,  38,  84. 
Moral  Personality  of  States,  53. 
Morocco,  13, 14,  51,  58, 92,94, 164. 
Municipal  Law,  19,  103. 
Munitions: 

embargo  on,  120,  130. 
complaint  of  U.  S.  against  Great 

Britain,  120. 
complaint  of  Germany  against 

U.  S.,  121. 
complaint  of  Germany  against 

Great  Britain,  121. 
impossibility  of  defining,  124. 

Nationalism : 
rights  of  nationalities,  16,  105, 

209. 

nature  of,  23. 
community  of  interests,  basis  of, 

24.  54- 

and  "Kultur,"  30. 
statesmen  and  idealists  enemies 

of,  32. 


INDEX 


231 


not  opposed  to  internationalism, 

basis  of  international  law,  34. 

basis  of  right  to  exist,  60. 

opposed  by  Pacifism,  151. 

necessity  for,  153. 
Nations: 

interdependence  of,  36,  215. 

controlling  forces  of,  47. 

vital  interests  and  honor  of,  51, 
52. 

no  common  judge  of,  52. 

no  absolute  right  to  exist,  59. 

not  truly  independent,  62. 

equality  of,  68. 

inequalities  of,  70. 

divergent  views  of,  86,  218. 

distinction  between  individual 
and,  101. 

definition  of  interests  of,  104. 

no  coercion  possible,  105. 

family  of,  133,  134. 
Neutrality : 

nature  of,  123. 

sale  of  ships  and  arms  by  neu- 
trals, 123. 

enlistments,  124. 

loans,  125. 

not  "a  continuance  of  a  state  of 
peace,"  126. 

an  abnormal  state,  127. 

"benevolent"  neutrality,  130. 

difficulties  of,  131. 

not  indifference,  136. 
Neutralization,  40. 
Neutrals: 

rights  of,  4,  128. 

disabilities  of,  5. 

conflict  of  interests  with  bel- 
ligerent interests,  5,  125, 
127. 

obligations  of,  129. 

cannot  adapt  attitude  to  chang- 
ing fortunes  of  war,  130. 

true  interests  of,  133. 

duty  of  intervention  by,  134. 

Hague  Convention  of  1907  con- 
cerning duties  of,  147. 
North  Atlantic  Fisheries  Arbitra- 
tion, 90. 
Norway,  27. 

Ottoman  Empire,  25,  58,  81,  93. 


Pacifism: 

dangers  of,  140, 156. 
meaning  of,  141. 
expects  too  much  of  Interna- 
tional Law,  143, 145. 
arbitration  propaganda  embar- 
rassing to  Europe,  146. 
the  true  task  of,  147. 
duty  of  Pacifists  toward  Ameri- 
can problems,  149. 
fosters  cowardice  and  material- 
ism, 150. 

ignores  spiritual  values,  150. 
opposed  to  Nationalism,  151. 
a  contributing  cause  of  war,  153. 
opposed  to  preparedness,  155. 
Panama,  13,  28,  40,  51,  62,  65, 182, 

212. 

Pan-Americanism,  158: 
purpose  of,  159. 
mistakes  of,  160. 
Monroe   Doctrine    as    a    Pan- 
American  doctrine,  162,  165. 
Commission  of  Jurists,  168. 
International     High     Commis- 
sion on  Uniformity  of  Laws, 
169. 
First   Pan-American   Financial 

Conference,  169. 
organization  of  American  na- 
tions, 170. 

Pan- American  Union,  114: 
possible  utility  of,  115,  170. 
development  of,  149. 
purpose  of,  159. 
Peace: 

nature  of,  203. 
horrors  of,  204. 
substitution  of  law  for  war,  173, 

201,  223. 

Persia,  13,  14,  51,  58,  92,  94- 
Pious  Funds  Arbitration,  87. 
Ports,  Rivers,  37,  39,  211. 
Preparedness,  Military,  155. 
President  Wilson: 

and  Pan- Americanism,  160. 
and  German  conspiracies,  187. 
"constitutionalism,"  policy  of, 

Prussia  (see  Germany). 

Public  International  Unions,  112: 

Telegraphic  Union,  112. 

Universal  Postal  Union,  112. 

International  Union  for  the  Pro- 


232 


INDEX 


tection  of  Industrial  Proper- 
ty, etc.,  113- 

Metric  Union,  113. 

Agricultural  Institute,  113. 

International  Maritime  Office, 

113- 

Sugar  Convention,  113. 
Customs  Tariff,  113- 
Inter-Parliamentary  Union,  113- 
Bureau  of  Arbitration,  113. 
great  value  of,  113- 

Recognition  of  States,  61. 
Reinsch,  P.  S.,  103. 
Religion,  25. 
Resources,  36. 
Revenues,  27. 
Rights  of  States: 

"  Declaration  of  Rights,    12,56, 

68. 
failure  of  International  Law  to 

define,  13. 
to"independence,  13,  61,  62,  63, 

64,  65. 

to  equality,  13,  68. 
to  existence,  14,  58,  60,  164. 
to  sovereignty,  13,  64,  65,  66. 
no  common  conception  of,  18, 

218. 

confused  with  interests,  56. 
legal  rights,  57- 

"inherent,"    "absolute,"      pri- 
mordial," "fundamental,    57, 

nationalism  basis  of  right  to  ex- 
ist, 60. 

definition  of  required,  107. 

of  aliens,  107. 
Roberts,  Earl,  iSS- 
Roosevelt,  President,  195. 
Root,  Mr.  Elihu,  19,  57,  162. 
Roumania,  49. 
Russia,  28,  40,  51,  79,  88,  91,  92, 

153,  208. 
Russo-Japanese  War,  130. 

Salonica,  39. 
Samoa,  91. 
San  Marino,  35- 
Sanitary  Board,  in. 
Savarkar  Arbitration,  89. 
Secretaries  of  Embassies  and  Le- 
gations, 197- 


Self-redress: 

abandonment  of,  201. 
international,  52. 
Serbia  and  the  Serbs,  32,  38,  39» 

84,  214. 
Servitudes,  91. 
Ships  and  Arms,  123. 
Sicily,  28. 

"Sittlickkeit,"  50,  iS4- 
Socialism,  28,  151- 
South  Africa,  63,  78. 
Sovereignty: 

corollary  of  right  to  exist,  64. 

origin  of  term,  64.^ 

synonymous  with  independence, 

65. 

absurd  in  application,  65. 
theory  of  no  real  value,  66. 
Spain,  78,  215. 
Spanish- American  War,  78. 
Spinoza,  49. 
Spitzbergen,  109. 
State,  The: 

origin  and  nature  of,  23. 

definition  of,  23. 

community  of  interests  the  basis 

of,  24. 

ethical  justification  of,  30. 
physical  essentials  of,  35. 
population,  35- 
territory,  36. 
variety  of  resources,  36. 
economic  defense,  37. 
rivers,  ports,  37- 
"hinterland"  doctrine,  38. 
adjacent  islands,  39. 
free  ports,  39. 
boundaries,  40. 
political  essentials,  40. 
reciprocating  will,  41. 
popular  guarantees,  42. 
constitutions,  42. 
defects  of  American  Constitu- 
tion, 42. 

defects  of  German  Constitu- 
tion, 43. 

should  be  self-sufficient,  37,  54- 
moral  personality  of,  44. 
German  theory  of,  45,  46- 
Anglo-Saxon  theory  of,  45. 
distinction  between  individual 

and,  47,  48,  101. 
the  security  of,  its  supreme  law, 
49. 


INDEX 


233 


the  "conscience"  of,  50,  52. 

rights  and  interests  of,  56. 

independence  of,  61,  62. 

sovereignty  of,  13,  65. 
Status  Quo,  59,  159. 
Suez  Canal,  109. 
Suzerainty,  65. 
Switzerland,  13,  29,  36,  62,  114. 

Taft,  President,  195. 
Tangier  s,  109. 
Territory,  36. 
Thomasius,  21. 
Treaties: 

should  be  for  brief  periods,  42. 

Prussian  valuation  of,  218. 
Trieste,  39,  211,  215. 
Tripoli,  81. 
Turkey  (see  Ottoman  Empire). 

United  States: 

defective  Constitution  of,  43. 

neutrality  of,  47. 

and  Colombia,  51. 

and  Cuba,  62. 

and  Canada,  63. 

and  Samoa,  91. 

complaint  against  Great  Britain 
as  the  "arsenal  of  the  Con- 
federates," 120. 

complaint  of  Germany  against, 
122. 

and  Napoleonic  Wars,  128. 

and  "The  Great  War,"  129. 

Geneva  Arbitration,  144. 


not  the  mediator  of  Europe,  147. 

military  preparedness  of,  156. 

failure  of  Pan-American  policy, 
1 60. 

assertion  of  hegemony  by,  161. 

conflicts  of  laws  in,  167. 

duty  toward  Pan- American' na- 
tions, 172. 

foreign  relations,  181. 

and  France,  185. 

Diplomatic  Service,  191,  196. 

Monroe  Doctrine  a  permanent 
policy  of,  195. 

Venezuelan    Preferential    Claims 
Arbitration,  88. 

War: 

causes  of,  76,  94,  206. 

Spanish- American,  78. 

South  African,  78. 

Russo-Japanese,  79. 

Italo-Turkish,  81. 

Balkan,  82. 

"The  Great'War,"  84. 

scientific  treatment  of  causes, 
86. 

substitution  of  law  for,  173,  201. 
War  ("The  Great  War"),  i,  15, 

32,  34,  49,  84,  93,  129,  140,  146, 

153.  174,  205,  214,  218. 
War  of  1812,  128. 
Washington  (President),  185. 
Westlake,  135. 
Wheaton,  65. 
World  Peace,  172. 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

This  book  is  due  on  the  last  date  stamped  below,  or 

on  the  date  to  which  renewed. 
Renewed  books  are  subject  to  immediate  recall. 


REC'D  LD 


MAY  6    196? 


NOU13'64- 


YB  0644 


